author: Sognier, Judge. Beasley, Judge,

text:
    73877.
    SOUTHERN GUARANTY INSURANCE COMPANY v. MILLER et al.
    (358 SE2d 611)
   Sognier, Judge.

Southern Guaranty Insurance Company filed a petition seeking a declaration of its obligations under an automobile policy issued by it to Harrison Poultry Company in regard to a suit filed by David Lee Gore against Harrison Poultry and its employee, Kenneth Miller, for injuries incurred in an automobile collision. After a hearing and on consideration of evidence, depositions and argument of counsel, the trial court determined that Southern Guaranty was bound by the policy to defend Harrison Poultry and/or Miller and to pay any liability which may be adjudicated in Gore’s suit against them. Southern Guaranty appeals.

Miller, in a vehicle owned by Harrison Poultry and insured by appellant, collided with a 1964 van, allegedly driven by Gore, on February 24,1984. The accident occurred when the van, which had pulled out in front of Miller’s vehicle on a county highway and was travelling at approximately 25 miles per hour, proceeded to turn left some 200 yards down the highway from where it had entered just as Miller began to pass the van on the left in the passing zone. The police were contacted and both Miller and the investigating officer inquired whether there were any physical injuries, receiving a negative answer in response. There was no property damage to the vehicle Miller was driving and, to the extent ascertainable, it appeared the 1964 van suffered little, if any, damage. Afterwards, Gore left to proceed on a 17-hour drive to Chicago and made no further contact with Miller or Harrison Poultry until sometime after April 26, 1985. Miller contacted Lee Roy Stowe, a manager at Harrison Poultry, within a few hours of the accident and another employee, who happened to be in the area at the time, also reported to Stowe about what he had observed at the accident scene. Stowe testified by deposition that after receiving the accident report from the police, he decided to ignore the matter because according to the report and the accounts given by the two employees of Harrison Poultry, there had been no injuries or significant damage. Sometime after Gore contacted Harrison Poultry, first notice of the accident was given to appellant under the automobile policy issued by it providing against liability arising out of the operation, maintenance or use of the vehicle driven by Miller.

Appellant contends the trial court erred by granting judgment in favor of appellees and failing to grant judgment in favor of appellant in that appellant had not been notified “as soon as practicable” about the accident, as required by the policy, thus relieving appellant of its obligations under the policy. Generally, whether an insured’s notice to an insurer is “as soon as practicable” is subject to a factual determination, whether by jury, Norfolk &c. Ins. Co. v. Cumbaa, 128 Ga. App. 196, 198-199 (2) (196 SE2d 167) (1973), or by the trial court acting without a jury. Bituminous Cas. Corp. v. J. B. Forrest & Sons, 132 Ga. App. 714, 717 (1) (209 SE2d 6) (1974). The courts have on occasion held a justification offered by an insured for failure to notify the insurer to be unreasonable as a matter of law under the nature and circumstances of the case. See Edwards v. Fidelity & Cas. Co., 129 Ga. App. 306, 307 (1) (199 SE2d 570) (1973); Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 220 (2) (231 SE2d 245) (1976). See also Protective Ins. Co. v. Johnson, 256 Ga. 713 (1) (352 SE2d 760) (1987). Although in Edwards, supra, we did not address “whether an insured has no duty to report an accident ... or has received some information of an occurrence that is so trivial in nature that no reasonable person would conclude that a claim would arise against him.” Id. at 307 (1), the obverse of the holdings in Edwards, Richmond, and Johnson, supra, would necessarily apply in that a justification offered by an insured for failure to notify the insurer can be reasonable as a matter of law under the facts and circumstances of a case.

The trial court in the case sub judice determined as a matter of law, based on evidence stipulated to by the parties or otherwise un-controverted, that the delay in giving notice here was “justified by the insured’s conclusion that the accident was not of sufficient severity to involve the insurer,” concluding that “the ordinarily prudent person acting reasonably would consider the incident as so trivial and so inconsequential as not to afford the basis of a claim or give rise to a claim and there is no duty to report it.” We find no error in the trial court’s ruling. Appellant’s argument that the premise of the trial court’s ruling incorrectly requires an insured to notify the insurer only after the repercussions of an accident become known is refuted by the clear language of the trial court’s order, which properly stresses that it is the nature and circumstances of “the accident” or “the incident” and the immediate conclusions an ordinarily prudent and reasonable person would draw therefrom that determine whether an insured has reasonably justified his decision not to notify the insurer. We find no merit in appellant’s assertion that an insured’s conclusion as to the trivial nature of an incident is the same as a conclusion as to the insured’s liability for the incident, the latter conclusion constituting an invalid excuse under Bituminous, 132 Ga. App. 717, supra, and Richmond, supra at 220. Although Stowe stated in his deposition that it was the usual procedure at Harrison Poultry to report accidents if “we feel like we have got any damage or we are at fault on,” and although Stowe testified they waited until they received a copy of the accident report, which reflected that no citations were issued, before deciding to ignore the incident, the depositions and other evidence support the trial court’s findings of fact and conclusions of law that it was the absence of any apparent personal injury to the parties involved and the minimal property damage ascertainable to Gore’s 1964 van that formed the primary, if not sole, basis for Harrison Poultry’s decision not to notify appellant about this event.

Accordingly, we find no error in the trial court’s ruling granting judgment in favor of appellees and against appellant.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

I respectfully dissent because the facts established do not compel, as a matter of law, the conclusion that insured notified the insurer “as soon as practicable.” This condition in the policy, which must be met before the insurer is obligated to defend a tortfeasor suit and to pay a claim, cannot conclusively be said to have been met here.

Decided May 6, 1987

Rehearing denied June 9, 1987

Michael L. Wetzel, for appellant.

Charles 0. Gignilliat, Richard B. Russell III, John E. Stell, Jr., Jack C. Bell, for appellees.

Notice was given about 14 months after the collision and was triggered by receiving a claim from the other driver’s attorney. Insured had not reported it to the insurer earlier because it made the judgment that the incident was trivial, although it had no assurance that there would be no claim made against it or its driver. Yet there was damage to the other vehicle and the driver in deposition stated that he believed he told the insured’s driver that he was “shook up and had a stiff neck” but thought he was all right. The police were called at the insistence of the insured’s driver, who believed the matter significant enough to wait approximately two hours for them. He also believed it of enough consequence to be bound to notify his employer. The police filed a report but charged no one with a traffic violation.

“The time limitations in policies of insurance requiring a report of incident ‘as soon as practicable’ are subject to a factual determination. ‘The questions of the sufficiency of the excuse offered, and the diligence of the beneficiary in giving the notice after the removal of the disability, are generally questions of fact, to be determined by the jury, according to the nature and circumstances of each individual case.’ [Cits.]” Norfolk &c. Ins. Co. v. Cumbaa, 128 Ga. App. 196, 198-199 (2) (196 SE2d 167) (1973). See also North East Ins. Co. v. Townsend, 169 Ga. App. 886 (315 SE2d 463) (1984).

I would reverse the judgment of the trial court and remand with direction that the question be submitted to the factfinder, in that neither plaintiff nor defendants are entitled to summary judgment.

I am authorized to state that Presiding Judge Deen and Presiding Judge Banke join in this dissent.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    74469.
    FREEMAN v. THE STATE.
    (358 SE2d 623)
   Banke, Presiding Judge.

Freeman appeals his convictions of driving under the influence of alcohol and speeding. Held:

1. Appellant asserts that the trial court’s charge on the issue of intent was unconstitutionally burden-shifting, in violation of Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344) (1985). The challenged portion of the charge was as follows: “[E]very person may be presumed to be of sound mind and discretion, but this presumption may be rebutted. I charge you that you may infer, if you wish to do so, that the acts of a person of sound mind and discretion are the product of his will and that the person of sound mind and discretion intends the natural and probable consequences of his act. Whether or not you make such an inference or inferences is a matter solely within the discretion of you members of the jury.” (Emphasis supplied.)

In Francis v. Franklin, supra, the Supreme Court denounced as violative of due process, language which a reasonable juror could have understood as creating a mandatory presumption which shifted to the defendant the burden of persuasion on the element of intent. The jury in Francis v. Franklin was instructed that, although such presumptions are rebuttable, “ ‘acts of a person of sound mind and discretion are presumed to be the product of the person’s will,’ and . . . [such] person ‘is presumed to intend the natural and probable consequences of his acts.’ ” Id. 85 LE2d at 354. (Emphasis in original.) In contrast, the language of the present charge was couched in terms of permissible inferences. The jurors were told merely that they were entitled to make certain presumptions or draw certain inferences from the evidence, not that the law required them to do so. Compare Sandstrom v. Montana, 442 U. S. 510, 515 (99 SC 2450, 61 LE2d 39) (1979). Although this court has specifically criticized any use of the word “presumed” in such a jury instruction (see Williams v. State, 180 Ga. App. 893, 894 (350 SE2d 768) (1986)), we nevertheless, conclude that the present charge, being couched entirely in permissive rather than mandatory language, complied with the requirements of Francis v. Franklin, supra, and was not violative of- the Due Process Clause. “A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.” Id. at 353-354.

2. Appellant further contends that the trial court improperly commented on the evidence when it charged that “a legal presumption of intoxication exists if you find the chemical analysis shows defendant’s breath, urine, or blood contained .11 percent of alcohol.” We disagree.

OCGA § 17-8-57 prohibits the trial judge in a criminal case from expressing or intimating his opinion as to what has or has not been proved. “The statute is violated when the court ‘ “assumes certain things as facts . . . and intimate [s] to the jury what the judge believes the evidence to be.” ’ ” Sweat v. State, 173 Ga. App. 441 (326 SE2d 809) (1985), citing Mitchell v. State, 190 Ga. 571, 572 (3) (9 SE2d 892) (1940). The challenged portion of the jury charge did not intimate any conclusion on the part of the trial court regarding what the evidence had shown with respect to the alcohol content of the defendant’s blood at the time of his arrest. Compare Sweat, supra. We do not reach the question of whether the charge may have been erroneous for some other reason, as no such argument is before this court.

Decided May 26, 1987

Rehearing denied June 9, 1987

Harvey A. Monroe, for appellant.

John C. Carbo III, Solicitor, Anne M. Landrum, Assistant Solicitor, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Benham, Judge.

text:
    74080.
    INSURANCE COMPANY OF NORTH AMERICA v. SMITH.
    (358 SE2d 658)
   Benham, Judge.

In 1984, appellee was employed by a company which provided housekeeping services to a manufacturing concern. She and her coworkers were informed at the beginning of August of that year that the employer’s contract with the manufacturer would expire at the end of that month and that the continued employment of the employees would be up to the new contractor. On August 11, 1984, appellee was injured while a passenger on a bus insured by appellant. She made a claim for benefits, including earnings lost during the period of the disability caused by her injury on the bus. Appellant paid appel-lee lost earnings benefits for the period between the injury and the end of August, asserting that no more lost earnings benefits were due since appellee would have been unemployed after the end of the month. In the suit appellee filed seeking payment of the benefits, appellant filed a motion for summary judgment, relying on appellee’s deposition testimony to establish that her former employer no longer had the contract for housekeeping services at the plant where appel-lee worked, that it would have been up to the new contractor to decide whether appellee would be retained, and that appellee had not received an actual job offer from the new contractor. In opposition to appellant’s motion for summary judgment, appellee submitted an affidavit of her own to the effect that although she had sometimes changed jobs or been laid off, she had remained regularly employed, always getting a new job immediately. Appellee also offered an affidavit from her former supervisor, who testified that he and all the workers he supervised were offered jobs by the new contractor and that appellee, who was a good worker, would have been hired had she not been injured. In a deposition taken in this case, appellee testified that she would have worked for the new contractor but for her injury. After considering the evidence of record, the trial court denied appellant’s motion for summary judgment. We granted appellant’s application for interlocutory appeal.

1. With regard to the issue of liability for lost earnings benefits for the period of appellee’s disability, appellant takes the position that it is entitled to judgment because appellee cannot prove either the fact or the amount of the lost earnings as required by OCGA § 33-34-6 (b). The basis for that position is appellant’s insistence that ap-pellee would have been unemployed after the end of August 1984 and that she cannot prove otherwise.

“ ‘Lost earnings can be recovered if the proof is reasonably certain.’ [Cit.] Thus, the insurer is required to pay those benefits set forth in OCGA § 33-34-4 (a) (2) (B), the fact and amount of which are shown with reasonable certainty to be due the insured. In the rare instance ... in which the insured is employed on the date of the accident and injury but where the employment is only certain in duration as to [a specified period], the insured is not necessarily precluded from recovery of benefits for loss of income or earnings for the length of disability. He must, however, establish with reasonable certainty his entitlement to benefits for loss of income or earnings during the period of his disability by showing that he had ‘accepted an oifer of income-generating employment or (has had) a continuous pattern of employment prior to the period of disability.’ [Cit.]” Midland Ins. Co. v. West, 175 Ga. App. 419, 421 (333 SE2d 628) (1985).

In appellee’s affidavit, she established a continuous pattern of employment prior to the period of the disability sufficiently so that the issue is not susceptible of summary adjudication. Whether her proof of the fact and amount of her lost earnings is sufficient to warrant an award of benefits to her is a question for a jury.

We hold, therefore, that the trial court was correct in denying appellant’s motion for summary judgment on the issue of liability for lost earnings benefits.

2. We also agree with the trial court that appellant is not entitled to judgment as a matter of law with regard to appellee’s claim for bad faith penalties. Appellant relies on American Interstate Ins. Co. v. Revis, 156 Ga. App. 204 (2) (274 SE2d 586) (1980), for the proposition that even if it was mistaken in denying benefits, it will have no liability for bad faith penalties if it can be said as a matter of law that it had a reasonable defense which vindicates its good faith. While we agree with that proposition, we cannot say that it applies, as a matter of law, to the defense raised by appellant in this case, especially in light of the evidence that appellant could have continued working without missing a payday had it not been for the injury she suffered on the bus operated by appellant’s insured. That question, too, will be most properly decided by a jury.

Decided June 9, 1987.

Sewell K. Loggins, Brian J. Morrissey, for appellant.

W. Franklin Freeman, Jr., for appellee.

Judgment affirmed.

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


author: Birdsong, Chief Judge.

text:
    74355.
    ROBERSON v. THE STATE.
    (358 SE2d 659)
   Birdsong, Chief Judge.

Bruce E. Roberson was convicted of two counts of burglary and sentenced to seven years, with five to serve and two on probation. He brings this appeal enumerating three alleged errors by the trial court. Held:

1. In his first enumeration of error, Roberson disputes the sufficiency of the evidence to support the convictions. Roberson admits the entry into several houses but denied the evidence shows it was with intent to commit a larceny therein. The jury heard evidence that Roberson broke out windows or broke through doors of several houses all in proximity to one another. In one he broke into the living area and upon confronting the occupant demanded money. In another, he went into the bathroom, closed the door and rummaged through the medicine cabinet. In another he locked himself in the bedroom and ransacked it. In each of these houses there were many items of value. There is no evidence that Roberson was successful in taking anything of value from any of the houses. It is equally apparent that in each of the houses he entered, he immediately encountered an occupant of the house which encounter caused his flight. Contrary to this evidence, Roberson introduced evidence that he had been invited to the room of a female where he was accosted by two males who robbed him and, upon demanding his secret code for his bank credit card, chased Roberson when he fled. Roberson contended that he broke into each of the houses in an attempt to escape his armed and dangerous pursuers and to obtain help. Each of the victims testified however that when they accosted Roberson he remained silent except on the one occasion when he demanded money. He never indicated his purpose was to seek help nor gave the reason for his flight.

The jury was presented with conflicting reasons for Roberson’s entry into the houses. They likewise had to reconcile these differing versions with the fact that apparently Roberson did not remove anything from any house. Viewing the evidence in the light designed to uphold the verdict of the jury, the jury was warranted in concluding beyond a reasonable doubt that Roberson broke into the house with intent to find and remove items of value. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal we are bound to construe the evidence with every inference and presumption in favor of upholding the jury’s verdict. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498). Where the testimony of the State and that of the defendant is in conflict, the jury is the final arbiter. Sims v. State, 137 Ga. App. 264 (223 SE2d 468). There is no merit to this enumeration.

2. Roberson proposes a unique issue for our consideration in his second asserted error. Roberson requested a charge on justification as a legal principle though the charge as requested was not adjusted to the concept of a peaceable entry nor did it fit the facts of the case. It was urged by Roberson he had the right to break out windows and doors in order to enter the houses in his effort to gain protection from his pursuers. While we have no quarrel with the right of any person to seek assistance from his fellow citizens from harm to himself, it defies logic to find within that right of assistance the equal right to break down doors and windows and demand money, rummage through medicine cabinets and ransack bedrooms. A charge even when requested in writing must state a correct principle of law and be adjusted to the evidence. Kessel v. State, 236 Ga. 373, 374 (223 SE2d 811). There was no error in the refusal of the trial court to give such a requested charge.

3. In his last enumeration of error, Roberson urges it was error for the trial court to overrule his motion in limine to keep out evidence that one of the victims of the burglaries suffered a heart attack as a result of the shock and the subsequent admission of such evidence. Inasmuch as Roberson admitted the entry into each of the houses, such evidence could have had no prejudicial effect upon the jury’s determination that Roberson did indeed break into the house. The only effect such evidence could have had of a prejudicial nature would relate to punishment. The jury exercised no such power. Moreover, the evidence tended to illuminate the violence of Roberson’s entry and thus had at least some probative value. As such it could help the jury determine the truth and reach a just verdict. See Garner v. State, 83 Ga. App. 178, 184 (63 SE2d 225). Even assuming arguendo that it was error to allow such evidence (an assumption not warranted) perforce we would conclude that the error as assumed would have been harmless. See Hamilton v. State, 239 Ga. 72, 76 (235 SE2d 515). There is likewise no merit to this enumeration.

Decided June 9, 1987.

Susan L. Frank, for appellant.

Lewis R. Slaton, District Attorney, H. Allen Moye, Paul Howard, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    74217.
    LIPSITZ et al. v. FIREMAN’S FUND INSURANCE COMPANY OF GEORGIA.
    (358 SE2d 624)
   Banke, Presiding Judge.

The appellee insurance company filed the present action to obtain a declaratory judgment with respect to whether the collapse of the roof on a refrigerated warehouse owned by the appellants was an event insured against under the terms of a policy of casualty insurance which the appellee had issued to them. This appeal is from the grant of the appellee’s motion for summary judgment and the denial of the appellants’ motion for partial summary judgment.

For three years prior to the actual collapse of the roof, the property had been insured under a multi-peril (“all-risk”) commercial property damage insurance policy issued by the appellee. It is undisputed that the damage would have been covered under the terms of that policy had the roof fallen during the period that policy was in effect. However, on August 1, 1985, five days before the roof fell, the “all-risk” policy expired and was replaced by a “named peril” policy, which, the parties agree, did not insure against the type of damage at issue.

The appellants submitted the affidavit of an engineering expert to the effect that the collapse had resulted from “the introduction of water into the [roof’s] insulation [which] then turned to ice causing the structure to sag, thereby creating a ponding effect and eventual roof collapse.” The appellants’ expert was of the opinion that the water and ice had been accumulating in the roof “for some considerable time prior to August 1, 1985.” The appellee’s expert agreed that ice had been forming in the insulation prior to August 1, 1985, but was of the opinion that the introduction of rain after August 1, 1985, had also been a significant factor. The trial court ruled as a matter of law that the “all-risk” policy afforded no coverage for the loss, concluding that the mere accumulation of ice in the roof insulation was not, in and of itself, an “event insured against” under that policy. Held:

In Nationwide Mut. Fire Ins. Co. v. Tomlin, 181 Ga. App. 413, 415 (352 SE2d 612) (1986), it was stated that “when ‘collapse’ is not otherwise defined in an [“all-risk”] insurance policy, it shall be deemed as having occurred when there is a reasonably detectable serious impairment of structural integrity.” Although the term “collapse” was not actually used in the “all-risk” policy at issue in the present case, it is conceded that a collapse occasioned by outside forces was an event insured against by that policy, which by its terms covered “all risks of direct physical loss or damage from any external cause to the property.” Since, under Tomlin, a “serious impairment of structural integrity” may, in and of itself, be equated with a “collapse,” it would appear to follow that such structural impairment may, in and of itself, be considered “physical damage.” As there was certainly evidence in this case from which it could be inferred that a “reasonably detectable serious impairment of structural integrity” occurred during the period the “all-risk” policy was in force, we consequently conclude that material issues of fact exist with respect to whether and to what extent the appellants are entitled to recover benefits under that policy. Accordingly, we hold that the trial court erred in granting the insurer’s motion for summary judgment. However, having determined that the existence vel non of liability is a fact issue under the circumstances of this case, we further hold that the trial court did not err in denying the appellants’ motion for partial summary judgment.

Decided May 27, 1987

Rehearing denied June 10, 1987

Charles M. Jones, Murray A. Galin, for appellants.

Richard K. O’Donnell, Clayton H. Farnham, John M. Tatum, for appellee.

Judgment affirmed in part and reversed in part.

Carley and Benham, JJ., concur.


text:
    74560.
    EARNEST v. MERCK.
    (358 SE2d 661)
   Birdsong, Chief Judge.

Summary Judgment — Corporate Veil. On October 31, 1985, Charles Earnest purchased a home from Executive Builders, Inc. The home was located near Lake Sinclair. Its source of water was a deep well. Earnest apparently dealt with his sister-in-law, Kathy Earnest, in the negotiations for the sale of the house. Kathy Earnest was an agent for Merck Realty. The home was built and owned by Executive Builders, and John Merck was the corporation’s president. Executive Builders used Merck Realty as the selling agent. John Merck was the president of Merck Realty. John Merck also was the broker sponsoring Merck Realty. During the negotiations for the sale of the house and land, Charles Earnest asked his sister-in-law about the water supply and Kathy referred Charles Earnest to John Merck. Merck informed Earnest that the well should supply approximately four gallons of water per minute which should be sufficient to supply domestic needs. Charles Earnest decided to purchase the house. The real estate sales contract was signed by Earnest as purchaser and reflected the selling agency as Merck Realty. The agent was shown as Kathy Earnest and the seller was shown as Executive Builders, Inc. with John Merck signing as president. The warranty deed from Executive Builders was signed by John Merck, as president. Also the record contains a copy of the contract between the well digger and Merck. That contract shows the well digger as the one party and the other as John Merck on behalf of Merck Realty. The well contract shows that the services were rendered on behalf of Merck Realty Company.

After Earnest accepted delivery of the house, in just a few days, it became apparent the well would not deliver even 2 or 3 gallons a minute and as a result the water supply for the house was wholly inadequate. Extended negotiations for an adequate water supply did not result in an acceptable compromise. Merck sued the well digger for breach of contract and recovered almost $5,000 in damages. However, none of that money has been credited to Earnest. It is uncontested that the funds for payment of the well came from Executive Builders and the recovery from the well digger was deposited to the account of Executive Builders.

Because of the inability of Merck and Earnest to reach an acceptable agreement as to the source of an adequate water supply, Earnest brought this complaint against Executive Builders, Inc., Merck Realty, and John Merck individually, seeking to rescind the contract and recover damages. Each of the defendants moved for summary judgment. The trial court denied summary judgment to the two corporate defendants but granted summary judgment to John Merck in his individual capacity. Earnest brings this appeal asserting as his lone enumeration of error the grant of summary judgment to John Merck individually. Held:

Earnest contends there are material issues of fact as to whether John Merck acted in his individual capacity so as to make the grant of summery judgment to Merck as an individual an erroneous ruling. Earnest contends that when he talked with Merck about the well and water capacity prior to the sale of the house he was not aware of whether he was accepting assurances from Merck in his individual capacity or as an officer of Executive Builders or Merck Realty. Earnest also points out in his brief that Merck sued the well digger in his own name and not that of Executive Builders or Merck Realty. The recovery was in Merck’s name. Lastly, Earnest points out that Merck was the only person involved in each of the corporate actions in the sale of the house and the promises and actions involved in the furnishing of the well water.

In contradiction thereto, the trial court was made aware that Executive Builders is a corporation composed of four stockholders, not a sole proprietorship. Merck Realty is a corporation composed of two stockholders. It was made clear that Executive Builders built, owned and sold the house in question. The offer to purchase the home was made by Earnest through his sister-in-law to Merck Realtors, not Merck individually. The offer to purchase was accepted by Executive Builders. The warranty deed was executed by Executive Builders through Merck as president. The closing statement clearly reflects that Executive Builders was the seller. Thus all documents executed by both parties indicated to Earnest that he was dealing with corporate entities.

All corporate bodies perforce must operate through individuals. The mere operation of corporate business does not render one personally liable for corporate acts. Trans-State v. Barber, 170 Ga. App. 372, 374 (317 SE2d 242). The corporate veil may be pierced where the parties themselves have disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control. We have not been presented with nor found any evidence in this record to indicate that Merck, in addition to acting as the principal operating officer of the corporate bodies involved, also conducted his private and corporate, business on an interchangeable or joint basis as if they were one. See Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 63 (250 SE2d 851). Moreover, all the documents signed by Earnest reflect that Merck signed in a representative capacity. Though Merck made certain oral statements (i.e., puffing) to Earnest as to the capacity of the well, Earnest had been referred by a sales agent to the president of the realty company. The documents of the sale contained written warranties pertaining to the house as well as to the utilities (including water). This warranty was signed by Merck in a representative capacity. Merck’s oral statements may be admissible to explain the meaning of the written warranty (subject to the statute of frauds) but assuming such to be the case, there is no evidence short of speculation that Merck was acting in an individual capacity whereas in apposition, the records show Earnest was aware by written documents that Merck was acting only in a representative capacity. See Zagoria v. DuBose Enterprises, 163 Ga. App. 880, 884 (296 SE2d 353).

In relation to the argument that Merck sued in his own name for the recovery of damages for a defective well, there are undisputed facts that again reflect Merck was not acting in his own behalf. It is undisputed that the cost of digging the well and all future efforts to correct the deficient supply of water was made by Executive Builders. The money recovered from the well digger was deposited to the account of Executive Builders. The statement of charges for the well digging was addressed to John Merck, c/o Merck Realty, and the services were shown to have been rendered on behalf of Merck Realty. Lastly there is no showing that the lawsuit between Merck and the well digger was in trust for Earnest or on Earnest’s behalf. In short, whether Merck sued in an individual or representative capacity casts no further light on the issue raised by Earnest in this appeal for he was not a party to that action and thus had no privity thereto.

Decided June 10, 1987.

Donald W. Huskins, for appellant.

George D. Lawrence, for appellee.

We conclude that the suit against Executive Builders and Merck Realty cannot proceed properly against their corporate officers in their individual capacities in the absence of compelling and persuasive reason showing the propriety of piercing the corporate veil. Farmers Warehouse of Pelham v. Collins, 220 Ga. 141, 150 (137 SE2d 619); Lincoln Land Co. v. Palfery, 130 Ga. App. 407, 411 (203 SE2d 597). Earnest has not raised a material issue that in essence John Merck was nothing more than the alter ego of the two co-defendant corporations or that Merck made the corporate assets vehicles for his own private affairs or that there was such a unity of interest and ownership that separate personalities of the corporation and owner did not exist. Sheppard v. Tribble Heating &c. 163 Ga. App. 732 (1) (294 SE2d 572). There was no error in the grant of summary judgment to Merck in his personal capacity. Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442).

Judgment affirmed.

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


text:
    74677.
    DANIEL v. BANK SOUTH CORPORATION.
    (358 SE2d 664)
   Birdsong, Chief Judge.

Summary Judgment. Daniel was and has been a banking customer of Bank South for a number of years. Over a period of several years, he obtained several loans in business transactions and personal loans. In 1981, Daniel had satisfied all his loans with Bank South except two personal notes covering two separate automobile loans. Daniel had a checking account with Bank South from which apparently Bank South automatically withdrew the monthly installment payments to pay the car notes.

Daniel was fairly heavily involved in real estate business prior to and during 1981. There was evidence presented to the trial court that Daniel’s customary practice was to take a construction loan and as the premises neared completion of construction or renovation, Daniel would replace the construction loan with a permanent loan. The real estate then would be sold with the permanent loan. In late 1981, Daniel found it necessary to obtain new or further financing for his real estate activities. It appears that Daniel applied to Halifax Mortgage, Inc. for financial aid. Halifax Mortgage requested a bank reference while processing the loan application. This was in the form of a U. S. Housing and Urban Development, Federal Housing Administration “Request for Verification.” The form was filled out in the name of William H. Paul Daniel and submitted to Bank South for execution. Halifax Mortgage denied Daniel’s application for financial assistance apparently because Daniel did not have current income tax returns or credit.

Meantime, the Request for Verification was being processed by Bank South. The form requesting the verification contained the checking account number maintained by Daniel but did not contain the account numbers of the two notes covering the two cars. In actual fact, the two car notes were issued in the name of Paul Daniel. Thus when the bank employee filled out the Request for Verification, the employee searched bank records for bank activity in the name of William H. Paul Daniel and not in the name of Paul Daniel. As a result the verification form reflected that Daniel had no outstanding loans in the name of William H. Paul Daniel. After being denied financial aid by Halifax Mortgage, Daniel applied to New American Mortgage. Daniel indicated that he had outstanding loans with Bank South (i.e., he had credit). However, when Daniel submitted the Request for Verification form prepared by Bank South, that form indicated Daniel had no outstanding loans.

The Request for Verification form contained a statement as follows: “I have applied for a mortgage loan and stated that I maintain account(s) with the bank or other depository named in Item 1. My signature below authorizes that bank or other depository to furnish the lender named in Item 2 the information set forth in Part II. Your response is solely a matter of courtesy for which no responsibility is attached to your institution or any of your officers.” The signature of William Paul Daniel appears immediately below.

New American Mortgage eventually likewise denied Daniel financial assistance apparently because Daniel had not correctly informed the lender of the loans (obviously an incorrect assumption by the lender). Ultimately some of the mortgage holders on Daniel’s real estate holdings foreclosed because Daniel could not obtain new temporary financial assets. Each foreclosure aggravated his position and eventually Daniel was forced into liquidation bankruptcy. When filing for bankruptcy, Daniel did not schedule the two notes with Bank South. Bank South moved the bankruptcy trustee to abandon the debts and allow Bank South to recover the two autos secured by the unscheduled debts. This was authorized.

Daniel filed this complaint against Bank South seeking damages for the failure to file an accurate credit report resulting in the denial of credit and ultimately causing Daniel to lose all his assets through bankruptcy.

Bank South answered and after extensive discovery moved the trial court for summary judgment. Among its several grounds, Bank South argued to the trial court that the trustee in bankruptcy was the real party in interest in that the trustee could not have abandoned the debt represented by the two notes to Daniel because the trustee was not aware of those two notes. It contended that there was no notice to the bank that there were two notes in the name of Paul Daniel because the request for verification pertained to William H. Paul Daniel. The bank also argued that the waiver signed by Daniel relieved the bank and its officers and employees of any negligence in making a search of its records. The bank also contended that the damages suffered through the bankruptcy and loss of property through foreclosure were too remote and were not proximately caused by the lack of information on the Request for Verification form. Moreover, the bank contended that Daniel was aware of the problem with the form prior to any foreclosures or denial of financing but declined or refused to reapply for a new verification.

Daniel countered with facts and contentions that the trustee was aware of the notes prior to institution of the litigation and thus there was an issue as to whether the trustee had abandoned the notes back to Daniel so as to make him the real party in interest. Daniel concedes the two outstanding notes were not identified in the body of the Request for Verification form and the name of William H. Paul Daniel was the name of the requestor, whereas the notes were in the name of Paul Daniel. He also points out that the checking account number was reflected in the form and the bank routinely satisfied the monthly installment payments of the two notes from that checking account, thus placing the bank on notice of the existence of the notes. Daniel also denied that the form contained a waiver, that he never intended a waiver and even if a waiver could be implied, there may well be a public policy issue if the waiver could indemnify the bank against its own gross negligence. Daniel further contends that issues of proximate cause and negligence, simple or gross, are primarily matters for a jury. He further offered evidence and argument that it was for a jury to decide whether Daniel did all that was reasonable under the circumstances to mitigate his damages or whether the damages were proximately caused by Bank South or were too remote.

Decided June 10, 1987.

Fredric W. Tokars, for appellant.

Kent T. Stair, Alan B. Kyman, Douglas Wilde, for appellee.

We are bound by the premise that in motions for summary judgment, the evidence must be construed most favorably toward the party opposing the grant of the same; and most unfavorably toward the party applying for the motion for summary judgment. All inferences and conclusions which arise from the evidence must be likewise construed. Faircloth v. Plastic Clad Corp., 139 Ga. App. 444, 445 (228 SE2d 397); Tipton v. Harden, 128 Ga. App. 517 (4) (197 SE2d 746). The cardinal rule of the summary procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. Bagley v. Firestone Tire &c. Co., 104 Ga. App. 736, 739 (123 SE2d 179). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact and if the trial court is presented with a choice of inferences to be drawn from the facts, all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion. United States v. Diebold, 369 U. S. 654, 655 (82 SC 993, 8 LE2d 176); Lewis v. C & S Bank, 139 Ga. App. 855, 860 (229 SE2d 765). Applying these principles, we are constrained to conclude there remain unresolved issues of material fact that must be decided by a jury. Accordingly, the trial court erred in granting summary judgment to Bank South.

Judgment reversed.

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


text:
    74088.
    BROCK v. THE STATE.
    (358 SE2d 613)
   Benham, Judge.

Appellant was convicted of child molestation and aggravated child molestation of his stepdaughter. His sole enumerated error on appeal is that he was denied his constitutional right to effective assistance of counsel.

“We follow the Supreme Court’s two-prong test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), in determining whether there has been actual ineffective assistance of counsel, thereby requiring the reversal of defendant’s conviction. The defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense [Cits].

“In Strickland the Supreme Court approved Georgia’s ‘reasonably effective assistance’ standard enunciated in Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974) [cits.]. Thus, counsel’s performance will not be found to be deficient if it falls within the range of ‘reasonably effective assistance.’ To perform within this range, counsel must make all significant decisions in the exercise of reasonable professional judgment. The reasonableness of counsel’s performance is then considered in light of the totality of the circumstances, viewed from counsel’s perspective at the time of trial, thereby eliminating the possible distortions of hindsight analysis. [Cit.] The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.

“Regarding the second prong of the test, the defendant must show that the deficient performance actually prejudiced the defense. In other words he must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors. [Cits.]” Brogdon v. State, 255 Ga. 64 (3) (335 SE2d 383) (1985).

In the case at bar, appellant’s stepdaughter testified that appellant forced her to commit an act of oral sodomy upon him and had sexual intercourse with her when she was eleven years old. The victim testified that she did not report the molestation immediately because appellant had threatened to kill her siblings and their mother. A doctor who examined the child reported that the victim’s condition reflected sexual activity; and the child’s mother, to whom the child reported the molestation, testified about the child’s report to her, the child’s manifestations of her dislike for appellant, and the child’s regression in school at or about the time of the molestation.

Keeping in mind the standard enunciated in Strickland v. Washington, supra; and Brogdon v. State, supra, we turn to the allegations of ineffectiveness raised by appellate counsel. Cited first is trial counsel’s failure to object to the elicitation of testimony, on redirect examination of the victim, that she had seen appellant strike her mother as well as point a gun at her. Appellate counsel maintains that this evidence of appellant’s bad character was improper in the absence of evidence of good character. However, the testimony complained of explained why the victim did not immediately report the molestation to anyone, and her credibility, in light of appellant’s denial of the acts, was at issue. Therefore, the testimony was relevant. See Pittman v. State, 179 Ga. App. 760 (348 SE2d 107) (1986). Compare Thompson v. State, 181 Ga. App. 163, 165 (351 SE2d 483) (1986).

Appellant also finds fault with his trial attorney’s failure to object to a violation of the trial court’s motion in limine. Although the indictment alleged that the offenses occurred between January 1, 1983 and January 1, 1985, thereby making the dates alleged non-essential averments (see Pittman, supra, Division 1), the trial court, expressing concern about the lack of advance notice of the use of similar transactions, limited the prosecution to proof of two events of molestation rather than permitting evidence of any number of transactions of the nature charged within the period alleged. Since the trial court erred in so restricting the State (see Pittman, Division 1), it cannot be said that defense counsel’s failure to object to testimony concerning similar acts of molestation occurring within the averred period amounted to ineffective assistance of counsel.

Appellant presented several witnesses who testified to appellant’s good character. During its cross-examination, the State asked each witness if he/she were aware that appellant had previously been sentenced for criminal trespass and gambling. Appellant contends his trial counsel was ineffective because he failed to object to the admission into evidence of certified copies of appellant’s pleas of guilty to criminal trespass and of nolo contendere to gambling.

“When a defendant has offered evidence of his own good character either by his testimony or by testimony of witnesses appearing on his behalf, then it can be said that he has literally put his character ‘in issue.’ Henderson v. State, 5 Ga. App. 495 (3) (63 SE 535) (1908).” Phillips v. State, 171 Ga. App. 827, 830 (321 SE2d 393) (1984) (special concurrence). When a defendant puts his character in issue, the State may prove other prior convictions. Phillips v. State, 254 Ga. 370, 372 (329 SE2d 475) (1985). Because good character is a substantive fact (Shropshire v. State, 81 Ga. 589, 591 (8 SE 450) (1888)), subject, as is any substantive fact, to rebuttal by the State, the admission of certified copies of appellant’s convictions was not error, and failure to object to their admission was not error.

Lastly, appellant maintains trial counsel was ineffective because he failed to voice an objection to the testimony of the victim’s mother, who, when asked if she believed her child, replied, “With all my heart.” Even if the statement is viewed as impermissible bolstering of the victim’s testimony, we cannot say that the failure to object to the testimony actually prejudiced the defense so that “there is a reasonable probability that the outcome of the proceedings would have been different.” Brogdon v. State, supra.

It was not error to deny appellant’s amended motion for new trial.

Judgment affirmed.

Banke, P. J., and Parley, J., concur.

Decided May 11, 1987

Rehearing denied June 15, 1987.

A. Kristina Cook Connelly, Bobby Lee Cook, for appellant.

Darrell E. Wilson, District Attorney, Charles S. Cox, Assistant District Attorney, for appellee.


text:
    74424.
    DENNEY v. SHIELD INSURANCE COMPANY.
    (358 SE2d 628)
   Banke, Presiding Judge.

The appellee insurer filed this action to obtain a declaratory judgment adjudicating the extent, if any, of its obligation to pay the appellant personal injury protection benefits as the result of an accident in which he was involved. The appellee additionally sought an interlocutory injunction restraining the appellant from prosecuting the PIP claim during the pendency of the declaratory judgment action. The appellant counterclaimed to recover the PIP benefits, plus a statutory bad-faith penalty and attorney fees.

After the appellant filed his responsive pleadings, the trial court lifted and then reimposed a temporary restraining order it had previously issued staying the prosecution of the PIP claim. Based solely on the existence of the restraining order, the appellee insurer moved to dismiss the counterclaim pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim, whereupon the appellant moved to set aside the restraining order and to dismiss the complaint for failure to state a claim. The trial court subsequently entered a pre-trial order in the case, and, a few weeks thereafter, granted the appellee’s motion to dismiss the counterclaim and denied the motions filed by the appellant. The appellant then filed a direct appeal to this court, which the appellee has moved to dismiss based on the appellant’s failure to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34. Held:

The motion to dismiss the appeal is granted, as the order appealed from clearly is neither a final judgment nor otherwise directly appealable. The appellant’s reliance on Aiken v. C & S Bank of Cobb County, 249 Ga. 481 (291 SE2d 717) (1982), for the proposition that “the dismissal of a counterclaim after a consideration of a pre-trial order is tantamount to the grant of a summary judgment” is misplaced. What Aiken held was that an order striking a counterclaim was tantamount to a grant of summary judgment where it was based on a consideration of proposed pre-trial orders which had been submitted by the parties and upon certain evidence presented in the case. In contrast, it does not appear that the dismissal of the appellant’s counterclaim in the present case was based on consideration of any evidence or any admissions appearing outside the pleadings. More importantly, it is clear that the dismissal was not intended to constitute a ruling on the merits of the counterclaim, for although the ruling was characterized as a dismissal for failure to state a claim, it is evident that it was in fact based solely on the existence of the temporary restraining order previously entered in the case. Clearly, even had the dismissal of the counterclaim been denominated a grant of summary judgment, it would not, under the circumstances, have constituted one, since “an adjudication on summary judgment is an adjudication on the merits of the case [Cits].” Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974). Accord Hilliard v. Edwards, 169 Ga. App. 808, 809 (315 SE2d 39) (1984).

Decided June 1, 1987

Rehearing denied June 15, 1987

Johnny N. Panos, E. Gray don Shuford, for appellant.

William P. Tinkler, Jr., William S. Shelfer, Jr., for appellee.

The appellant’s contention that he was entitled to file a direct appeal from the denial of his motion to set aside the restraining order is similarly without merit. The cases cited in support of this contention are inapposite in that they involved rulings which left nothing pending in the trial court. Moreover, those cases were decided prior to the enactment of OCGA § 5-6-35 (a) (8) (Ga. L. 1984, p. 599, § 2), pursuant to which the denial of a motion to set aside asserted pursuant to OCGA § 9-11-60 (d) is always subject to the discretionary appeal procedures, even if it constitutes a final judgment.

Appeal dismissed.

Carley and Benham, JJ., concur.


text:
    74650.
    WILLIAMS v. THE STATE.
    (358 SE2d 629)
   Banke, Presiding Judge.

In a four-count indictment, the appellant, Mary Ruth Williams, was charged with murdering Alfred Lee English, Jr., and committing aggravated assault against Alfred’s mother, Barbara English, and his two sisters, Betty and Anne Marie English. The appellant was found guilty of involuntary manslaughter and three counts of simple assault. This appeal is from the denial of her motion for a new trial.

The state’s evidence showed that while the appellant’s ex-husband was driving away from the appellant’s home in the company of Barbara English and her three children, appellant fired shots at the car, hitting and killing one of the children, Alfred English. Held:

Decided June 3, 1987

Rehearing dismissed June 15, 1987.

Robert S. Lanier, Jr., for appellant.

J. Lane Johnston, District Attorney, for appellee.

1. In three separate enumerations of error the appellant contends the convictions are unsupported by the evidence. Reviewing the evidence in the light most favorable to the jury’s verdict, we find that it was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of each of the offenses of which she was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Wallace v. State, 178 Ga. App. 876 (344 SE2d 770) (1986).

2. The appellant contends the trial court erred in disallowing evidence of her ex-husband’s past violence towards her. After a careful review of the transcript, we have determined that the stormy relationship which existed between the appellant and her ex-husband was in fact presented to the jury for their consideration, as was evidence of his propensity for violent behavior towards others. This enumeration of error consequently presents no issue for our consideration.

3. The appellant contends the trial court erred in refusing to grant a mistrial when the police chief, in response to a question posed by the district attorney concerning the appellant’s physical condition, stated: “I went ahead and read her her rights, sir, and she elected not to talk to me until she had her attorney present. ...”

Evidence that an accused exercised his or her right against self-incrimination is not admissible for such purposes as impeachment. Clark v. State, 237 Ga. 901 (230 SE2d 277) (1976). However, the testimony in this instance was inadvertently elicited by the state and was not used for impeachment purposes, as was the case in Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976). Moreover, “[t]he district attorney did not stress appellant’s silence in an attempt to infer guilt, nor was the jury ever told that the appellant’s silence could be used for impeachment purposes, much less as evidence of guilt. . . . To reverse a conviction, the evidence of the defendant’s election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.” Cape v. State, 246 Ga. 520, 523 (272 SE2d 487) (1980). See also Duncan v. State, 252 Ga. 255 (312 SE2d 805) (1984). No such situation exists in this case.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Pope, Judge.

text:
    73710.
    WILLIAMS v. KAMINSKY.
    (358 SE2d 667)
   Pope, Judge.

1. Williams appeals the order and judgment of the lower court in a garnishment action. Because appellant has failed to obtain an order of the court permitting the filing of an appeal, the appeal must be dismissed. OCGA § 5-6-35 (a) (4); Mason v. Osburn Hardware &c. Co., 174 Ga. App. 865 (331 SE2d 888) (1985).

2. We grant appellee Kaminsky’s motion to impose damages against Williams pursuant to OCGA § 5-6-6 for pursuing a frivolous appeal. The record shows as follows: In 1984 appellee Kaminsky obtained a judgment in the amount of $63,167.15 in a contract action against C & W Land Development Corporation. Appellant Williams was a shareholder in said corporation who, prior to the filing of the contract action, executed an agreement “to indemnify and hold harmless the Corporation for . . . any judgment that might be obtained by Kaminsky against the Corporation. . . .” Before going out of business in 1985, the corporation paid just over $25,000 on the judgment debt. In an effort to collect the remainder of the judgment, Kaminsky filed this garnishment proceeding against Williams as garnishee. The trial court found that the indemnity agreement created a debt owed by Williams to the corporation and awarded Kaminsky garnishment in the amount of $51,747.33, representing the amount of the judgment plus accrued interest after giving credit for the payment made against the judgment by the corporation.

Quoting from Parker v. Puckett, 129 Ga. App. 265, 267 (199 SE2d 343) (1973), Williams argues that “ ‘ “[ijndemnity” means “reimbursement. . . .” ’ ” Williams claims the corporation has paid nothing on the judgment and therefore has sustained no loss for Williams to indemnify. The record shows the corporation paid more than $25,000 on the judgment before it went out of business. Therefore, not only is this appeal frivolous, it is based upon a purposeful misrepresentation of the facts. It is ludicrous to argue that a judgment debtor must first pay a judgment before it can collect “reimbursement” from its indemnitor.

“Upon careful examination of the record, we have concluded that there was no arguable merit to the appeal and that ‘appellant knew or should have known that, under a careful reading of the facts and the relevant law, his appeal was ill-founded.’ Ray v. Standard Fire Ins. Co., 168 Ga. App. 116, 118 (308 SE2d 221) (1983).” Holcomb v. Commercial Credit Svcs., 180 Ga. App. 451, 452 (349 SE2d 523) (1986). In light of the fact that Williams’ liability under the indemnity agreement was clear and unambiguous, considered in conjunction with Williams’ misrepresentation of the facts appearing in the record, “[i]t does not appear that there was any valid reason for the appellant to anticipate reversal of the [trial] court’s judgment, and, consequently, we must conclude that the appeal to this court was for the purpose of delay only. Accordingly, the appellee’s request for award of damages in the amount of 10 percent of judgment is granted.” Hanover Ins. Co. v. Scruggs Co., 162 Ga. App. 640, 641 (292 SE2d 493) (1982). The clerk of this court is directed to enter upon the remittitur ten percent damages against Williams and in favor of Kaminsky.

Decided June 15, 1987.

Claude E. Hambrick, for appellant.

Patricia E. Ratner, Robert W. Beynart, for appellee.

Appeal dismissed with damages.

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


author: Carley, Judge.

text:
    73733.
    EVANS v. HARVEY.
    (358 SE2d 668)
   Carley, Judge.

Appellant-plaintiff was a passenger in an automobile which struck a cow that had wandered onto the roadway. The cow belonged to appellee-defendant and had somehow escaped from its fenced-in enclosure. Appellant brought suit to recover for injuries he sustained in the collision. The jury returned a verdict in favor of appellee. Appellant appeals from the judgment entered on the jury’s verdict and from the denial of his motion for a new trial.

1. Appellant enumerates as error the trial court’s charge on the theory of accident. The contention is that the charge was erroneous for two reasons. First, appellant urges that accident was not raised by the evidence, and therefore, no charge on the theory was authorized. Second, he asserts that the charge that was given was an erroneous statement of the theory of accident.

Prior to consideration of the merits of this enumeration, a procedural issue must be addressed. After instructing the jury in the case sub judice, the trial court informed counsel that it would “allow [them] to reserve [their] exceptions until after the transcript [had] been prepared, or [they could] state them [then], whichever [they] preferred].” Appellant’s counsel responded that he “would elect. . . just to call to [the court’s] attention that [charge] on an accident [and] would like to reserve the right to make any further more detailed exceptions until the transcript comes out.” Notwithstanding the trial court’s statement to counsel regarding the time for raising objections to its charge, the applicable statute provides: “Except as otherwise provided in this Code section, in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” (Emphasis supplied.) OCGA § 5-5-24 (a). We know of no authority for a trial court to waive the provisions of this statute and thereby allow counsel in a civil case the opportunity to raise objections to its charge at a later time. Compare White v. State, 243 Ga. 250 (253 SE2d 694) (1979). Were it not for the trial court’s statement in this case, the only “objection” raised by appellant’s counsel before the jury returned its verdict would not suffice to preserve the right to enumerate on appeal any error in the charge on accident. The “objection” states in support thereof no grounds whatsoever. See Moore v. Carrington, 155 Ga. App. 12, 13 (3) (270 SE2d 222) (1980). However, assuming without deciding that the trial court would have the authority to waive OCGA § 5-5-24 (a) or, if not, recognizing that counsel was misled in this case, we will address the merits of whatever grounds of objection to the charge on accident appellant may have raised in his motion for new trial. Appellant’s motion for new trial raised only the ground that no charge on the defense of accident was authorized under the evidence. Accordingly, we will only consider the merits of that ground and will not address the assertion that the charge as given was an erroneous statement of the principle of accident, which assertion is made for the first time on appeal.

“[T]here was evidence here . . . that the loss of control over the [cow] and the failure to have the animal properly penned at the time of the collision were for reasons other than appellee’s failure to exercise ordinary reasonable care in this regard. [Cits.] There was also evidence that [the collision in which appellant was injured] was not the result of a failure to exercise due diligence for his own safety. [Cit.J Thus there was evidence which would authorize a finding that the collision and resulting injuries occurred even though neither appellant nor appellee was negligent with regard thereto. [Cit.] Since the evidence supported a finding that the collision was, ‘an unintended occurrence which could not have been prevented by the exercise of reasonable care’ the trial judge did not err in charging on accident.” Pirkle v. Triplett, 155 Ga. App. 945, 946-47 (3) (274 SE2d 59) (1980). There was no error in giving a charge on the defense of accident in this case.

2. Appellant enumerates as error the trial court’s refusal to admit into evidence some 18 of 20 photographs which were proffered. The photographs had been made some seventeen months after the collision, and it was established that the scenes that were depicted in the 18 that were excluded had undergone substantial and material changes in the interim.

It is within the trial court’s discretion to determine whether or not a particular photograph constitutes a fair and accurate representation of the scene sought to be depicted and, unless manifestly abused, the exercise of that discretion will not be controlled on appeal. Williams v. State, 255 Ga. 97, 101 (335 SE2d 553) (1985). That the scene may have changed as to some immaterial matters before the photographs were taken will not render them objectionable and the trial court, in the exercise of its discretion, is authorized to admit them into evidence. See Bradshaw v. State, 172 Ga. App. 330 (1) (323 SE2d 253) (1984). Here, however, it was shown that the scene had undergone substantial and material changes prior to the taking of 18 of the photographs. Under these circumstances, the exclusion of those photographs was not an abuse of the trial court’s discretion. City Council of Augusta v. Lee, 153 Ga. App. 94, 99 (4) (264 SE2d 683) (1980). The two photographs which were shown to depict scenes as they appeared at the relevant time notwithstanding the lapse of time were admitted. There was no error.

Decided June 15, 1987.

Richard Phillips, for appellant.

J. Franklin Edenfield, Glen A. Cheney, for appellee.

Judgment affirmed.

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


author: Carley, Judge. Banke, Presiding Judge,

text:
    74118.
    SOTO v. ROSWELL TOWNHOMES, INC. et al.
    (358 SE2d 670)
   Carley, Judge.

Appellant-plaintiff filed suit, seeking to recover for both the personal injuries and the property damage that she had allegedly sustained as the result of an influx of mud, silt, and surface water onto her property. That influx was the alleged result of construction and development activities which were being carried out by appellee-de-fendants on the property which adjoined appellant’s. Appellees answered appellant’s complaint and the case proceeded to discovery.

In appellant’s deposition, she testified to the following: She had first noticed the influx of mud, silt, and surface water in May of 1984 and had called appellee-American Investment Management Corporation to complain. In response, Mr. Gregory Smith, who is a vice-president of two of the appellees, came to her house and assured her that “they were going to stop all the drainage and clean up everything.” Appellant again complained in July of 1984 and Mr. Smith again came to her home to investigate. According to appellant, Mr. Smith “came by the screen and he motioned me to come out. And I says, No, there is all this mud. He says, That’s all right, come slowly. So he showed me they had a camera, and I says, All right.” Appellant exited her house and walked around the yard with Mr. Smith, showing him the mud that was on her property. Immediately thereafter, as she was standing outside the door to her house and talking with Mr. Smith, appellant slipped on the mud and fell. As the result of that fall, appellant sustained the personal injuries for which she sought to recover damages in this action.

Appellees moved for summary judgment as to appellant’s personal injury claim and that motion was granted. Appellant appeals from the order of the trial court granting partial summary judgment in favor of all appellees.

Construing the evidence of record in this case most favorably for appellant, a potentially dangerous situation, in the form of an accumulation of mud, was created by appellees. The law imposes upon one who has created a dangerous situation the “duty to do something about it so as to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights and in the exercise of ordinary care for their own safety may be injured thereby. . . . [T]he one creating the same is under a duty to eliminate the danger or give warning to others of its presence.” Hardy v. Brooks, 103 Ga. App. 124, 126-127 (2) (118 SE2d 492) (1961). The potentially dangerous situation at issue in this case was created on appellant’s own property. Prior to her fall, appellant had actual knowledge of the existence of the mud on her property and had vigorously complained of its presence. “[T]he duty to warn extends only to latent dangers — not those which are open and obvious. [Cit.]” Laite v. Baxter, 126 Ga. App. 743, 748 (2) (191 SE2d 531) (1972). Appellant contends that, although she was well aware of the existence of the mud on her property, she was not fully aware of the extent of its slipperiness. “While, ordinarily, knowledge of a defect is not necessarily knowledge of danger inherent in the defect ([cit.]), we think that knowledge of [the presence of mud] is obviously knowledge of probable danger of slipping when walking therein].” Wade v. Roberts, 118 Ga. App. 284, 287 (163 SE2d 343) (1968). Thus, notwithstanding their creation of the potentially dangerous situation, appellees had no duty to warn appellant that, if she walked in those areas of her property where the mud had accumulated, there was a probable danger of slipping and that she should guard against that danger in the event that she did walk in those areas. “There is no duty to warn of the obvious, or of that which the plaintiff already knew or should have known. [Cits.] That [appellant] was beckoned by [Mr. Smith] to follow him [outside] does not alter the rule. ‘A person cannot undertake to do an obviously dangerous thing, even though directed by another . . . without assuming the risks incident thereto, and without himself being guilty of such lack of due care for his own safety as to bar him from recovery if he is injured. . . [Cit.]” Roberts v. Bradley, 114 Ga. App. 262-263 (150 SE2d 720) (1966).

“As a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial before a jury. [Cits.] However, where the facts conclusively show by plain, palpable and undisputed evidence that the defendant was not at fault . . . , such case properly may be resolved as a matter of law through the vehicle of summary judgment. [Cits.]” Fort v. Boone, 166 Ga. App. 290, 291-292 (304 SE2d 465) (1983). After reviewing the record, we find that this case is one which is to be included among such negligence cases as may be resolved by summary adjudication. The evidence shows that the muddy condition and the danger that it presented were obvious to anyone who encountered it and that appellant was not required to traverse the muddy areas of her property. Compare Grier v. Jeffco Mgt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985). Under the circumstances, appellees breached no duty owed to appellant to warn her of physical danger and, assuming that her fall was not a legal accident occurring through the fault of no one, “a finding is demanded that [her] fall resulted from a defective and unsafe condition of the premises of which she was aware; and [she] is therefore barred from recovery by reason of her failure to exercise ordinary care for her own safety.” Taylor v. Boyce, 105 Ga. App. 434-435 (2) (124. SE2d 647) (1962). See also Wade v. Roberts, supra. The trial court correctly ruled and the judgment of the trial court is affirmed.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Sognier and Beasley, JJ., concur. McMurray, P. J., Banke, P. J., Pope and Ben-ham, JJ., dissent.

Banke, Presiding Judge,

dissenting.

Having apparently analyzed this as an ordinary “slip-and-fall” case, the majority has concluded that, because the presence of the mud was obvious, the plaintiff’s injuries cannot legally be attributed to the defendants’ alleged tortious misconduct in causing it to be present on her property but must instead be deemed the proximate result of her own failure to exercise ordinary care for her safety. However, it is not appropriate to treat this as an ordinary “slip-and-fall” case for the simple reason that the plaintiff did not encounter the hazard by entering voluntarily upon the defendants’ premises. Rather, the defendants are alleged to have sent the hazard to her as she was attempting to exercise quiet enjoyment of her own property. Indeed, her fall occurred just outside the door to her home. What was she required to do under these circumstances to demonstrate due care for her own safety? Remain a prisoner in her home? Move?

The “superior-knowledge” standard of liability normally applicable in “slip-and-fall” cases arises from practical necessity in that a lesser standard would, in effect, make the proprietor of a business establishment an absolute guarantor of the safety of customers entering upon the premises. See generally Alterman Foods v. Ligon, 246 Ga. 620, 622-624 (272 SE2d 327) (1980). Thus, it has long been the rule that “ ‘if [the] invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge assumes the risks and dangers incident to the known condition.’ ” Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906 (81 SE2d 721) (1954). See also Harris v. Star Svc., 170 Ga. App. 816, 817 (318 SE2d 239) (1984); McIntyre v. Corporate Property Investors, 160 Ga. App. 868 (288 SE2d 584) (1982).

While the “superior knowledge” standard is eminently reasonable and appropriate in those cases where the plaintiff has voluntarily elected to confront a known hazard by entering upon the defendant’s premises, it has no reasonable applicability to cases such as the one before us now. Indeed, even in “traditional” slip-and-fall cases, the standard has been held inapplicable where the plaintiff’s awareness of the danger is counterbalanced by other factors militating against a finding of voluntariness. For example, in Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977), and Phelps v. Consolidated Equities Corp., 133 Ga. App. 189, 193 (210 SE2d 337) (1974), this court held that it was not appropriate to grant summary judgment to a landlord in an action by a tenant to recover for injuries attributable to a known hazard existing on the premises, where the tenant’s only alternatives to confronting the hazard were either to remain trapped in her apartment or be denied access thereto. See also Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984).

This is not to say that the defenses of voluntary assumption of risk and contributory negligence are not available to the defendants under the circumstances of the present case. However, I do not believe that either of these defenses operates to defeat the appellant’s claim as a matter of law. “ ‘Even where there is no dispute as to the facts, it is . . . usually for the jury to say whether the conduct in question met the standard of the reasonable man.’ ” Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336) (1976). Because I am unable to conclude as a matter of law that the plaintiff’s injuries resulted from a voluntary decision on her part to test a known danger, I would reverse the grant of summary judgment against her in her personal injury action.

Decided June 15, 1987.

Harold K. Corbin, Richard W. Wilson, Jr., for appellant.

J. M. Hudgins IV, Lance D. Lourie, Thomas F. Allgood, Jr., for appellees.

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


text:
    74266.
    MUNGIN v. THE STATE.
    (358 SE2d 673)
   Pope, Judge.

Charles Mungin was indicted for murder by vehicular homicide, and was tried and found guilty of voluntary manslaughter. Mungin did not testify, but during a preliminary Jackson-Denno hearing two statements he made to police prior to his arrest were ruled voluntary and were admitted in evidence at trial.

1. Appellant contends that his statements were not freely and voluntarily made. The evidence in this regard was conflicting. Appellant testified at the Jackson-Denno hearing that he asked for an attorney and to talk to his relatives before making any statements, but was told he did not need á lawyer and was not allowed to talk to his parents until after he made the first statement. He further stated that he was afraid because the officer “hollered” at him, and that he repudiated the statements at the first opportunity given. The detective who took his statements, however, testified that appellant was thoroughly informed of his constitutional rights before making both statements and that he voluntarily agreed to make them; that he never asked to speak to an attorney; that he was allowed to talk to his stepfather during the interviews; and that he was a high school graduate with 3V2 years of college. A waiver of rights form was signed and initialed by appellant. Appellant was not handcuffed or formally placed under arrest at the time he made the statements, nor was he told he could not leave. Following the first interview, appellant accompanied police to his residence, where he consented to their examination of his car.

We find no grounds for reversal for any of the reasons asserted by appellant. His complaint that he was entitled at the Jackson-Denno hearing to the testimony of everyone present when he made his statements was considered and rejected in Copeland v. State, 162 Ga. App. 398, 400 (291 SE2d 560) (1982): “There is no requirement that all witnesses to a confession must testify at the hearing held to determine whether the statement was voluntarily made.” Appellant’s fear when the detective interrogating him “hollered” at him was self-induced and was not the “fear of injury” contemplated by OCGA § 24-3-50, which must be induced by another; in this case there was no evidence that the police had threatened to harm him if he did not make a statement. Hall v. State, 180 Ga. App. 366 (1) (349 SE2d 255) (1986). Whether or not appellant had been formally charged with the crime for which he was tried at the time his statements were taken would not affect their admissibility or voluntary character, but was simply a circumstance to be taken into consideration by the jury in weighing such statements under OCGA § 24-3-53. See Gainer v. State, 144 Ga. App. 703 (2) (242 SE2d 286) (1978). Appellant’s assertion, without citation of authority or argument, that the length of his interrogation (totaling approximately three hours, with a four-hour break in between when he returned to his home with the police) was coercive is also without merit. Finally, since the transcript shows that the trial court specifically ruled that the statements were voluntary, there was no need for formal findings of fact or a written opinion. Cf. Walraven v. State, 250 Ga. 401 (4(a)) (297 SE2d 278) (1982); Sims v. Georgia, 385 U. S. 538 (87 SC 639, 17 LE2d 593) (1967). Factual and credibility determinations of voluntariness made at a Jackson-Denno hearing must be accepted by appellate courts unless clearly erroneous. McNabb v. State, 180 Ga. App. 723 (2) (350 SE2d 314) (1986). This enumeration of error cannot be sustained.

2. Appellant contends that because he did not testify at trial, the trial court erred in allowing the State to present testimony of a police officer that appellant came to the police station between 1:30 and 2:30 a.m. to report a stolen check in order to impeach appellant’s later statements that he was talking to the victim at the time. Citing Davis v. Stewart, 169 Ga. App. 733 (3) (315 SE2d 6) (1984), he argues that a witness cannot be impeached in anticipation of his testimony. While Davis holds that a prior conviction is inadmissible to impeach the anticipated testimony of a witness, the voluntary, noncustodial statements of a defendant are admissible through the testimony of anyone who heard them and are not inadmissible on the ground that they were hearsay. Hardeman v. State, 180 Ga. App. 632 (2) (349 SE2d 839) (1986). See also Moore v. State, 240 Ga. 210 (2) (240 SE2d 68) (1977); Henderson v. State, 170 Ga. App. 482 (317 SE2d 343) (1984).

3. Appellant also complains that the officer’s testimony concerning his appearance at the police station, that he “appeared to be intoxicated,” impermissibly interjected his character in evidence. This statement was not responsive to the question asked the witness, and defense counsel neither objected nor moved for mistrial nor asked for curative instructions. Moreover, the “[consumption of alcohol by adults is not prohibited and ... is irrelevant to character.” Rielli v. State, 174 Ga. App. 220, 223 (330 SE2d 104) (1985). We find no ground for reversal.

Decided June 15, 1987

Charles C. Grile, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    74311.
    ASHBURN BANK v. REINHARDT.
    (358 SE2d 675)
   Carley, Judge.

Appellee-defendant executed in appellant-plaintiff’s favor a promissory note and three deeds to secure debt. On March 27, 1985, which was subsequent to appellee’s default on the note but prior to any foreclosure on the properties, the parties entered into an agreement. The stated purpose of this agreement was “[t]o avoid the expense and notoriety of foreclosure proceedings. ...” The agreement provided that, in lieu of foreclosure, appellee would execute and deliver to appellant deeds to the three parcels of real estate. The agreement also contemplated appellant’s ultimate sale of the properties “at the earliest practicable date and [the] application of] the net proceeds to the obligations of [appellee] to [appellant].” The agreement further provided that “the amount of any deficiency after sale of the collateral is unknown [but] [t]he rights and claims of [appellee] and [appellant] with respect to [this] and other questions are expressly reserved.”

Pursuant to this agreement, appellee conveyed the three parcels of property to appellant by warranty deed. Thereafter, appellant apparently sold the properties to third parties and then brought this suit against appellee, seeking to recover an amount that was alleged to represent the unpaid balance that was owed by appellee on the promissory note. Appellee answered, raising several defenses. Appellant subsequently moved for summary judgment in its favor. The trial court denied appellant’s motion but certified its order for immediate review. This appeal results from the grant of appellant’s application to this court for an interlocutory appeal from the denial of its motion for summary judgment.

1. Among the defenses raised by appellee is the contention that appellant, having failed to seek confirmation of any sale of the properties pursuant to OCGA § 44-14-161, is barred from seeking a deficiency judgment.

By its terms, OCGA § 44-14-161 applies “[w]hen any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts. . . (Emphasis supplied.) “On its face, therefore, it refers only to the foreclosure procedure. [Cit.]” Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1, 2 (2) (147 SE2d 31) (1966). “This statute is in derogation of the common law and it has been and must be strictly construed. [Cit.]” Taylor v. Thompson, 158 Ga. App. 671, 672 (282 SE2d 157) (1981).

In this case, it is clear that no sale of the properties pursuant to non-judicial foreclosure by the exercise of a power of sale has ever occurred. Appellee voluntarily conveyed the property to appellant by warranty deed for the express purpose of avoiding non-judicial foreclosure through appellant’s exercise of the power of sale. Such sales of the property as appellant itself may have made to third parties subsequent to appellee’s voluntary conveyance were not sales which were made by appellant pursuant to its exercise of a power of sale. Accordingly, OCGA § 44-14-161 is inapplicable as a matter of law and appel-lee’s reliance upon its provisions is not a “right” which was “reserved” to him under the parties’ express agreement of March 27, 1985.

2. Appellee also raised the doctrine of merger as a defense. He asserts that an issue of fact remains as to whether his conveyance of the properties to appellant resulted in an extinguishment of the underlying debt by operation of that doctrine. See generally Franklin Mtg. Co. v. McDuffie, 43 Ga. App. 604 (1) (159 SE 599) (1931). Wrenn v. Massell Investment Co., 56 Ga. App. 802 (1) (194 SE 263) (1937).

The doctrine of merger does not apply “when it appears that the holder of both [estates] intended that a merger should not take place. The intent controls. [Cit.] Such intention sometimes expressly appears from the writings. . . .” Pitts Banking Co. v. Fenn, 160 Ga. 854 (1) (129 SE 105) (1925). The warranty deed which was executed and delivered by appellee to appellant specifically recites that the conveyance of the properties was being made pursuant to the parties’ agreement of March 27, 1985 and that the agreement of that date would survive the delivery of the deed. The March 27, 1985 agreement clearly evinces not merely the intent of appellant, but the mutual intent of both appellant and appellee that no merger and extinguishment of the debt would occur as the result of the conveyance. It specifically provides that appellant’s acceptance of the conveyance in lieu of foreclosure does not purport to evince its waiver or compromise of “any existing differences or claims against [appellee]. The sole purpose and effect of the transfer is to avoid the expense and publicity of foreclosure proceedings. . . . [T]he amount of any deficiency after sale of the collateral is unknown. The rights and claims of [appellee] and [appellant] with respect to [this] and other questions [is] expressly reserved.” (Emphasis supplied.) Prior to the conveyance, appellant obviously had an “existing” claim against appellee on the note. The agreement clearly contemplates that, after the conveyance, appellee had merely the “right” to contest the extent to which he remained liable to appellant on the note, and not the “right” to contest the continued existence of appellant’s claim against him on the note. “We think the intention that there should be no merger is a necessary deduction from the writings themselves.” Ferris v. Van Ingen & Co., 110 Ga. 102, 111 (3) (35 SE 347) (1899). Since the intent that no merger and extinguishment of the debt affirmatively appears on the face of the relevant instruments themselves, no further proof of the inapplicability of appellee’s merger defense was necessary. Fraser v. Martin, 195 Ga. 683, 688 (1) (25 SE2d 307) (1943).

Decided June 15, 1987.

Ben B. Mills, Jr., for appellant.

Thomas H. Pittman, for appellee.

3. Subsequent to March 27, 1985, appellant apparently caused two of the deeds to secure debt to be marked “satisfied” and to be cancelled of record. The record does not indicate whether this may have been done merely to facilitate appellant’s sale of the two properties or whether it was done for other reasons. Appellee urges that, in the absence of an explanation, an issue of fact remains as to whether the acts evince the existence of an intent on the part of appellant that his debt would thereby be extinguished. However, the retention of at least one deed to secure debt which contains a dragnet clause and which is neither marked “satisfied” nor which was cancelled of record manifests appellant’s intent that the entire debt was not to be extinguished and evinces the continued viability of its right to sue on the underlying debt. Compare Woodside v. Lippold, 113 Ga. 877 (39 SE 400) (1901).

4. Resolution of the issues discussed above does not require a complete reversal of the trial court’s order. Our review of the record shows that genuine issues of material fact remain with regard to the amount of the unpaid indebtedness that appellee owes to appellant. Accordingly, the order denying summary judgment in favor of appellant is reversed as to the issue of liability. The order is affirmed as to the issue of damages.

Judgment affirmed in part and reversed in part.

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


text:
    74623.
    SMITH et al. v. GEORGIA POWER COMPANY et al. CITY OF COLLEGE PARK et al. v. GEORGIA POWER COMPANY et al.
    74624.
    (358 SE2d 879)
   Birdsong, Chief Judge.

The City of College Park filed two actions simultaneously, for declaratory judgment that a “service contract” between Georgia Power Company and the Metropolitan Atlanta Rapid Transit Authority (MARTA) be declared void, and for judicial review of an Order of the Georgia Public Service Commission declaring Georgia Power Company had exclusive authority to serve MARTA facilities located in College Park. On October 23, 1985, the trial court issued judgment for the appellees in both actions. A notice of appeal was timely filed as to those orders on November 20, 1985, in which appellants directed the clerk to omit nothing from the record and that a “[t]ranscript of evidence and proceedings will be filed for inclusion in the record on appeal.” Through inadvertence, counsel for appellants made no arrangements for preparation of a transcript. On April 9, 1986, this omission was discovered and counsel filed a Motion for Extension of Time to Prepare Transcript (April 11,1986 in Case No. 74623). The trial court issued an order, April 11, 1986, granting an extension of time to file the transcript in both cases until July 15.

On April 23, 1986, appellees filed a Motion to Vacate Order and to Dismiss Appeal in each case, citing the statutory time for preparation of a transcript had expired and no extension of time had been requested before expiration of the statutory period. The trial court, on June 20, 1986 in Case No. 74624, and January 15, 1987 in Case No. 74623, filed its orders vacating its orders of April 11, 1986, which extended the time to file the transcripts, and dismissed the appeals on the basis that the statutory time for filing a motion for “an extension of time to file transcript. . . had expired. . . . Since such appeal has not been perfected within the time required by law . . . the trial court . . . lacked subject matter jurisdiction to enter such order since the judgment of the trial court had become final without a timely perfection of the appeal.” Appellants bring, these appeals from the trial court’s orders of June 20, 1986 and January 15, 1987. Held:

The same issues are involved in both appeals. Appellant contends the trial court erred in (1) dismissing the City’s appeal without first giving the City an opportunity for an oral hearing, and (2) failing to decide whether the delay in filing the transcript was unreasonable and inexcusable.

1. We note that appellee’s Motion to Vacate Order and to Dismiss Appeal, filed April 23, 1986, did not contain a request for an oral hearing, nor was a rule nisi attached. The Uniform Rules for Superior Courts, effective July 1, 1985, provide that “[u]nless otherwise ordered by the court all motions in civil actions . . . shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict. Oral argument on any motion shall be permitted upon written request.” Rule 6.3. The record contains no written request for oral hearing. It was not error for the trial court to decide this motion upon the briefs in the absence of written request for oral argument, or a rule nisi. Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734 (1) (350 SE2d 265); Spikes v. Citizens State Bank, 179 Ga. App. 479 (1) (347 SE2d 310).

2. The appellant contends it was error for the trial court to dismiss its appeal without deciding whether the delay in the filing of the transcript was unreasonable and inexcusable. We agree. Appellant timely filed its notice of appeal from the original judgment and stated that a transcript of the proceedings would be filed. It is incumbent upon an appellant to file a transcript within 30 days after the filing of a notice of appeal. OCGA § 5-6-42. If the transcript cannot be prepared within the statutory period, an extension of time must be requested “before expiration of the period for filing as originally prescribed or as extended. . . .” OCGA § 5-6-39 (d). At issue here is the effect of the failure of the appellant either to file the transcript within the statutory period or request an extension before expiration of that time.

The Supreme Court answered a certified question on a similar issue from the Court of Appeals in Young v. Climatrol &c. Corp., 237 Ga. 53 (226 SE2d 737), and held that under the “Appellate Practice Act, the dismissal of an appeal is not mandatory except for three specific instances contained in [OCGA § 5-6-48 (b): (1) failure to file a notice of appeal within the time specified, (2) the decision or judgment is not then appealable, or (3) the question presented has become moot] ... All three relate to dismissals by the appellate courts. The provision [of OCGA § 5-6-48 (c)] authorizing the trial court to dismiss an appeal specifies that two elements must be present: One is that the delay was unreasonable and the other is that the unreasonable delay was inexcusable. In passing upon these issues, the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts.” Id. at 55.

Hence, it has been mandated that an appellate court will not dismiss an appeal except for the three statutory criteria, and “[t]he failure to timely file a transcript is not a basis for dismissal of the appeal unless the trial court finds that the delay was unreasonable, and that the unreasonable delay was inexcusable.” DuBois v. DuBois, 240 Ga. 314 (1) (240 SE2d 706); accord Patterson v. Professional Resources, 242 Ga. 459, 460 (249 SE2d 248). Any failure to file a transcript “is not jurisdictional, and it is not a ground for dismissal unless accompanied by the findings of unreasonableness and lack of excuse.” Young v. Jones, 147 Ga. App. 65, 67 (248 SE2d 49).

Decided June 15, 1987.

George E. Glaze, Steven M. Fincher, for appellants.

Robert H. Forry, Robert P. Edwards, Jr., Arthur H. Domby, for appellees.

In the instant appeal, the trial court found the failure to file the transcript within the statutory period or to timely request an extension of time was jurisdictional and did not exercise its legal discretion. “Where the trial judge has a legal discretion to exercise yet fails to exercise that discretion, resting his decision instead solely upon a point of law, a reversal will result.” Strother v. C & S Nat. Bank, 147 Ga. App. 140, 141 (248 SE2d 204). We therefore remand this appeal to the trial judge for determination of whether the delay in filing of the transcript was unreasonable, and if so, whether the unreasonable delay was inexcusable.

Judgments reversed and cases remanded.

Been, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    74839.
    ACKER v. VEAL et al. ACKER v. CRYDER.
    74840.
    (359 SE2d 7)
   Deen, Presiding Judge.

This case previously appeared as Acker v. City of Elberton, 176 Ga. App. 580 (336 SE2d 842) (1985), wherein this court found that the court below correctly granted the city’s motion to dismiss, but that an issue as to appellee McIntosh existed as to whether the statute of limitations had been tolled when Acker was incarcerated following his commitment as mentally incompetent. Acker dismissed his lawsuit on December 11, 1985, by mailing a dismissal notice from Central State Hospital and now claims that the six-month period in which to renew it after dismissal under OCGA § 9-2-61 has not expired because this time limitation did not begin to run until September 27, 1986, when the state found him competent to stand trial. The defendant Jerry L. Cryder was not a party to the original lawsuit. The two petitions in the instant case (one against Veal and McIntosh and the other against Cryder) were forwarded to the court prior to filing pursuant to the provisions of OCGA § 9-15-2 (d), and the court held that a review of the pleadings “show on their face a complete absence of a justiciable issue of law or fact and it cannot be reasonably believed that the court nor a jury could grant relief against any party named in the pleadings” and directed that the Clerk of Court of Elbert County not file either of the petitions. Held:

Decided June 15, 1987.

Harold N. Acker, pro se.

Curtis Veal, Sam McIntosh, pro se (case no. 74839).

Jerry L. Cryder, pro se (case no. 74840).

In the petitions, Acker alleges that he was injured by the defendants under the provisions of OCGA §§ 51-7-1; 51-1-13; and 51-7-20 and sets forth a factual statement in support of these contentions. We find that the petitions were therefore more than sufficient to set forth a cause of action under OCGA § 9-11-8, as it is only necessary that the defendants be placed on notice of the claim against them. Walton v. James & Dean, Inc., 177 Ga. App. 77 (338 SE2d 516) (1985).

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.