text:
    A93A1022.
    BREWER v. ROGERS et al.
    (439 SE2d 77)
   Beasley, Presiding Judge.

Brewer appeals from the grant of summary judgment to State Superintendent of Schools Rogers, Gillett Communications of Atlanta, Inc. d/b/a WAGA-TV 5, and its news reporter Shuler. Brewer sued these parties, plus the State of Georgia, in a number of counts. Relevant to the appeal are claims of libel and defamacast by WAGA and Shuler, slander by Rogers, and false light invasion of privacy by WAGA and Shuler.

The television newscast at issue was aired on November 14, 1989, and was prompted by a then-current investigation of alleged grade changes for a football-playing student at an Athens high school, which WAGA first learned about from a wire service within the two weeks prior to WAGA’s newscast. Brewer was the head football coach, and the team was known to be one of the best in the state. The news report of the investigation was given by Shuler and, through his interview, Rogers. It featured Brewer as one involved in the affair and named no one else. Shuler related that fifteen years earlier, in 1974, Brewer and three major gambling kingpins had been arrested when Brewer was assistant football coach at Cobb County’s Wheeler High School, in a $7,000,000 sports gambling ring which police called “one of the biggest operations in the state,” netting $20,000 a month on college and professional sports.

Shuler related that Brewer was charged with commercial gambling, keeping a gambling place, and felony possession of a pound of marijuana, pointing out that Brewer’s was the only raided location which yielded drugs. He stated that when Brewer was indicted by the grand jury, he pleaded guilty to the drug charge “and, in a first offender plea arrangement, pleaded no contest to the gambling charges.” In return, he reported, a judge “sentenced Brewer to one year of probation and a $1,000 fine and sealed the court records.”

Shuler then introduced an interview with State School Superintendent Rogers, conducted a few hours earlier, by reporting that Rogers said his office was not aware of Brewer’s criminal record until it was revealed by Eyewitness News. He asked Rogers how these things slip by, and Rogers said he did not know and wished they had not, and that if they had known of it, “of an individual being found guilty of a felony,” they would have reported it to the PPC for investigation. Shuler then reported that Rogers advised that when some school systems discover a problem teacher, they avoid controversy by “pas-sin’ the trash” on to another school.

Rogers stated that he thought it unacceptable to have individuals involved in activities “like that,” particularly any that involve young people, grade changing, morals charges, or anything like that. The newscast continues with Shuler stating that Rogers said he wanted to know what Brewer stated on his application form on the line that asks, “Have you ever been convicted of a felony?” It ends with Shuler stating that Rogers says he will have the state investigate the principals if he catches school systems failing to report “incidents like this one.”

Brewer and his wife at the time were arrested on October 21, 1974, for commercial gambling, keeping a gambling place, and violation of the Georgia Controlled Substances Act. The PPC was advised of this shortly thereafter by letter dated October 29 from Cobb’s Assistant Superintendent of Schools, which included attachments documenting this. It also advised that Mr. and Mrs. Brewer resigned on October 22 and their resignations were accepted on October 24. The letter shows that a copy was sent to the then State Superintendent of Schools, Nix. In response, the PPC wrote on November 1 that it took jurisdiction. It advised that it would investigate and possibly revoke teaching certificates but would await court adjudication unless it was prolonged, and that in any event it would keep the Cobb superintendents informed of its activities.

On the same day, which was eleven days after the arrest, Brewer entered pleas of nolo contendere to two misdemeanor counts of commercial gambling and keeping a gambling place and a guilty plea to a felony count of possession of a pound of marijuana. This was on an accusation of the district attorney, Brewer having waived grand jury indictment. He was sentenced to a fine of $250 on each misdemeanor and a fine of $500 on the felony, with one year’s probation on the felony and treatment under the First Offender Act for it. (OCGA § 42-8-60 et seq.)

About five months later, on May 29, 1975, the court wrote to the PPC as requested and enclosed a copy of the plea and sentence and transcript of the proceedings. The court pointed out in the letter that Brewer received first offender treatment and would not have a record if he complied with the court order. The court further advised that all charges against Mrs. Brewer were dismissed. Brewer did not lose his certification.

The transcript sent to the PPC reveals that during the court proceedings, the district attorney stated that with respect to the large gambling operation reported in the newspaper, “Mr. Brewer’s case is separate and independent and has no relationship whatsoever legally or factually to the cases which were made against these other persons. Our investigation reveals that this was a rather small-time, if not penny ante, operation here; that no great amount of bets had been placed, and it was confined to a very small and limited group of individuals, some four or five people, that we have been able to tell.” He related that the Illegal Services Division of the police concurred in the recommended disposition, which was subsequently implemented.

In September, upon petition from Brewer and with the consent of the district attorney, the court ordered the clerk to seal the record and the “indictment” so that “the same will not be available to the public; however, the Clerk is required to furnish the indictment (sic) and sentence to any court when ordered to do so.” The records in the Identification Bureau were likewise ordered sealed.

Three months later, on December 9, 1975, upon the petition of the probation supervisor, the court ordered Brewer “discharged without court adjudication of guilt. . . [which] shall completely exonerate [Brewer] of any criminal purpose . . . not affect any of [Brewer’s] civil rights or liberties, and [Brewer] shall not be considered to have a criminal conviction.” This was in exact conformance with the requirements of OCGA § 42-8-62 (a). The court ordered that copies be sent to the State Probation System and the Identification Division of the FBI.

The information about Brewer which was related on the newscast was obtained by Shuler on the day of the newscast from the superior court docket book and two news articles from the Marietta Daily Journal. One, undated in the record, apparently appeared a few days after the arrests on October 21 and was primarily about Brewer, although the arrests of others was also included. He and they were described as “bookmakers.” The other is dated November 5, four days after the plea and sentencing, and reports the arrest of the three “kingpins” of the large gambling operation the day before the article. It connected Brewer with the gambling ring and reported on Brewer’s pleas and sentences, but it did not mention the first offender treatment.

Shuler testified that the court docket stated that Brewer had been “adjudicated not guilty,” and this as well as other portions of the docket sheet were flashed across the screen.

Brewer testified that he disclosed the arrest and discharge to his subsequent employers in various school systems, including the last one in Athens. The superintendent of the Clarke County schools testified that he disclosed it prior to his employment there.

1. On summary judgment, all evidence and all reasonable inferences which may be drawn therefrom are viewed favorably to the non-movant. Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234) (1989). This includes “questions of credibility and of the weight to be accorded particular evidence.” Masson v. New Yorker Magazine, 501 U. S. __ (111 SC 2419, 115 LE2d 447, 475) (1991). Defendants must demonstrate that there is no genuine issue of material fact as to any essential element of plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); OCGA § 9-11-56.

2. The count of libel against WAGA and its employee Shuler merges with the count alleging “defamacast” and is constituted of defamation on television. American Broadcasting &c. v. Simpson, 106 Ga. App. 230 (1) (126 SE2d 873) (1962); OCGA § 51-5-10 (a). The count alleging slander by Rogers is governed by OCGA § 51-5-4. “Defamation by broadcast includes elements of both libel (OCGA § 51-5-1) and slander (OCGA § 51-5-4).” S & W Seafoods Co. v. Jacor Broadcasting, 194 Ga. App. 233, 234 (1) (390 SE2d 228) (1989).

(a) We cannot say as a matter of law that the statements made were true. As appeared in the public record, if not fully on the docket sheet itself, then in the record of the PPC, Brewer had been discharged without court adjudication of guilt. The law states that “[t]he discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.” OCGA § 42-8-62 (a). As said in Witcher v. Pender, 260 Ga. 248, 249 (392 SE2d 6) (1990), “[t]his provides the person who successfully completes his probation under the first offender statute protection against the stigma of a criminal record.”

As described above, there was also public record evidence of PPC knowledge and action and of Brewer’s non-involvement in the widespread gambling operation.

A defamatory statement “may be made in indirect terms or by insinuation, [and] the publication thereof must be construed as a whole.” Thomason v. Times-Journal, 190 Ga. App. 601, 602 (1) (379 SE2d 551) (1989). The question is what construction the average viewer would place upon the telecast. See Macon Tel. Pub. Co. v. Elliott, 165 Ga. App. 719, 721 (1) (302 SE2d 692) (1983). “Except where an alleged [publication] is not defamatory as a matter of law, the general rule is that the issue of defamation is a matter of fact to be determined by a jury. [Cit.]” Id. at 720.

As in Pacific & Southern Co. v. Montgomery, 233 Ga. 175, 177, 180 (210 SE2d 714) (1974), “[t]he telecast, the pictures and spoken narrative taken in their entire context, together with the testimony of the plaintiff and the defendant news reporter [and interviewee Rogers, and other evidence in the record], convince us that the issue of defamation or no defamation [is] a question of fact for determination by the jury ... In short, whether this telecast was defamatory of the plaintiff on its face, and whether it was true or not pursuant to [the evidence], [are] issues for determination by the jury.”

The concept of falsity vel non was aired by the United States Supreme Court in Masson, supra. Defamation law “overlooks minor inaccuracies and concentrates upon substantial truth. ... a statement is not considered false unless it ‘would have a different effect on the mind of the [viewer] from that which the pleaded truth would have produced.’ ” Masson, supra at 472. The Court concluded that it was a jury question in that case.

(b) If there is falsity, the question arises whether Brewer is a public figure. A mixed question of law and fact, it is one for the court and not the jury to determine. Sewell v. Eubanks, 181 Ga. App. 545, 546 (1) (352 SE2d 802) (1987); Williams v. Trust Co. of Ga., 140 Ga. App. 49, 53 (230 SE2d 45) (1976). It is decided on a case-by-case basis. See Ellerbee v. Mills, 262 Ga. 516, 520 (2) (422 SE2d 539) (1992) (special concurrence); see also Byers v. Southeastern Newspapers Corp., 161 Ga. App. 717, 719 (288 SE2d 698) (1982). Compare Gertz v. Robert Welch, Inc., 418 U. S. 323 (94 SC 2997, 41 LE2d 789) (1974), which set out that an individual becomes a public figure on one of two alternative bases: “In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.” Id. at 351.

Based on the record, we conclude that the trial court did not err in finding Brewer to be a public figure, for the purposes of this suit.

(c) Because Brewer was a public figure, both at the time of the 1974 episode and also at the time of the 1989 broadcast, actual malice of the truth must be proved. New York Times Co. v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686) (1964). “A public figure may not recover damages for a defamatory falsehood without clear and convincing proof that the false ‘statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Harte-Hanks Communications v. Connaughton, 491 U. S. 657, 659 (109 SC 2678, 105 LE2d 562) (1989). See Williamson v. Lucas, 166 Ga. App. 403, 404 (2) (304 SE2d 412) (1983); Eidson v. Berry, 202 Ga. App. 587, 588 (415 SE2d 16) (1992). A better term than “actual malice,” wrote the United States Supreme Court in Masson, supra at 469, is that the publication must be “with knowledge of falsity or reckless disregard as to truth or falsity.” On summary judgment in such cases, the question is “whether a genuine issue of actual malice exists — that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity.” Anderson v. Liberty Lobby, 477 U. S. 242, 257 (106 SC 2505, 91 LE2d 202) (1986).

For First Amendment purposes, “reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” St. Amant v. Thompson, 390 U. S. 727, 731 (88 SC 1323, 20 LE2d 262) (1968). The Court considered the competing interests and applied the following rationale: “Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.” Id. at 732.

Assuming the broadcast communicated falsities or a falsity by Shuler or Rogers or both, there is no evidence which would indicate an awareness by either of them of the probable falsity. Compare Barber, supra at 290-291. Brewer’s complaint is that they failed to investigate adequately. However, “[fjailure to investigate does not in itself establish bad faith.” St. Amant, supra at 733, citing New York Times Co. v. Sullivan, supra at 287-288. There is no evidence which would establish the required degree of reckless disregard with respect to Rogers, other than his apparent failure to investigate at all before he spoke in the televised interview. Shuler’s failure to go beyond the court docket sheet or the two 1974 newspaper articles to ascertain the meaning and ramifications of first offender and “adjudicated not guilty,” or the actions of the PPC, or the accuracy of the newspaper-alleged tie to a huge gambling operation, or whether Brewer had disclosed the matter to school employers, does not evince actionable reckless disregard. “[T]he defendant must have made the false publication with a ‘high degree of awareness of . . . probable falsity,’ Garrison v. Louisiana, 379 U. S. 64, 74 [(1) (85 SC 209, 13 LE2d 125)] (1964), or must have ‘entertained serious doubts as to the truth of his publication,’ St. Amant, supra, at 731.” Harte-Hanks Communications, supra at 667. What defendants did or did not do here differs from the circumstances in Curtis Publishing Co. v. Butts, 388 U. S. 130 (87 SC 1975, 18 LE2d 1094) (1967), where the investigatory techniques employed evidenced “an intent to avoid the truth.” Harte-Hanks Communications, supra at 692-693.

As to the use of the first offender treatment information when there has been a complete discharge, the cases construe the intent of the Act to allow only limited use. In State of Ga. v. C. S. B., 250 Ga. 261 (297 SE2d 260) (1982), for example, the court points out the need for use in a subsequent prosecution of the same defendant. See OCGA § 42-8-65. The Court also noted the increased confidentiality of first offender records added by the legislature in 1978: access to records of discharge restricted to specified prosecutorial and probation officials upon certification of pending criminal charges (OCGA § 42-8-65); and discharge not useable to disqualify one for employment (OCGA § 42-8-63). However, the Court held, the Act does not intend complete ex-pungement of the record.

Evidence of the guilty plea underlying the discharged first offender’s treatment may not be used to impeach him by showing he has been convicted of a crime involving moral turpitude, Witcher, supra, but may be used in a civil trial to impeach an adverse witness by disproving or contradicting his testimony. Hightower v. General Motors Corp., 255 Ga. 349 (338 SE2d 426) (1986). Since possible lack of trustworthiness is shown by a plea of guilty, even without a formal conviction, the Supreme Court held in Favors v. State, 234 Ga. 80, 87 (3) (214 SE2d 645) (1975), that a defendant in a criminal case could use the first offender guilty plea to impeach the testimony of the witnesses against him. In reaching this ruling, the Court balanced this right against the rights of the first offender to protection against the stigma of a criminal record. A prior first offender guilty plea which culminates in a discharge cannot be used later to sentence a defendant as a recidivist. Queen v. State, 182 Ga. App. 794 (1) (357 SE2d 150) (1987). First offender disposition and discharge does not preclude, under OCGA § 42-8-62 (a), “the admission of evidence of the underlying conduct itself for the purpose of showing a similar transaction engaged in by the same person” in a subsequent criminal case. Tilley v. State, 197 Ga. App. 97, 99 (2) (397 SE2d 506) (1990).

Whether defendants were authorized to use the first offender information in the first place for this public broadcast is not an issue pursued by Brewer, and thus we do not decide it. The only claims on appeal are defamation and false light invasion of privacy. We note in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492 (95 SC 1029, 43 LE2d 328) (1975), the Supreme Court’s view that “[w]ith respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.”

3. Brewer’s claims for false light invasion of privacy by Shuler and WAGA likewise do not survive summary judgment, based on the evidence of record.

Decided December 2, 1993

Reconsideration denied December 13, 1993

Deedra M. Brewer, for appellant.

Michael J. Bowers, Attorney General, Kathryn L. Allen, Dennis R. Dunn, Senior Assistant Attorneys General, Alston & Bird, Daniel A. Kent, Judson Graves, Richard R. Hays, for appellees.

“Invasion of privacy was first recognized in this state in the landmark case of Pavesich v. New England Life Insurance Co., 122 Ga. 190 (50 SE 68) (1904): The right of privacy is embraced within the absolute rights of personal security and personal liberty. Personal security includes the right to exist and the right to the enjoyment of life while existing, . . . Personal liberty includes not only freedom from physical restraint, but also the right ‘to be let alone,’ . . .” Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 704 (1) (409 SE2d 835) (1991).

Cabaniss v. Hipsley, 114 Ga. App. 367, 370 (151 SE2d 496) (1966), divides the tort of invasion of privacy into four types, only one of which is relevant here: “publicity which places the plaintiff in a false light in the public eye.”

In a false light case, “ ‘[t]he interest protected is clearly that of reputation, with the same overtones of mental distress as in defamation.’ ” Id. at 375 (3). The essential element is that “ ‘the false light in which the other was placed would be highly offensive to a reasonable person.’ ” Thomason v. Times-Journal, 190 Ga. App. 601, 604 (4) (379 SE2d 551) (1989).

We agree with the trial court that the absence of actual malice in the constitutionally-mandated sense precludes recovery under Cabaniss, supra. It was held in Time, Inc. v. Hill, 385 U. S. 374 (87 SC 534, 17 LE2d 456) (1967), “that the constitutional protections for speech and press preclude the application of [state law allowing a privacy action] to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.” Id. at 387-388. See also Rosenbloom v. Metromedia, 403 U. S. 29, 31, n. 1 (91 SC 1811, 29 LE2d 296) (1971).

Judgment affirmed.

Cooper and Smith, JJ., concur.

       Counts for public disclosure invasion of privacy by WAGA and Shuler and for invasion of privacy by the State acting through Rogers were also included but are not within the scope of Brewer’s appeal.

       State of Georgia Professional Practices Commission, a public agency. OCGA § 20-2-790 et seq.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A92A1613.
    MOTEL PROPERTIES, INC. v. MILLER.
    (440 SE2d 267)
    Decided December 13, 1993.

      Forbes & Bowman, Morton G. Forbes, Johnny A. Foster, for appellant.

      John P. Batson, for appellee.
   Smith, Judge.

On certiorari, the Supreme Court reversed the decision of this court affirming the trial court’s denial of appellant’s motion for summary judgment in Motel Properties v. Miller, 206 Ga. App. 370 (425 SE2d 334) (1992). See Motel Properties v. Miller, 263 Ga. 484 (436 SE2d 196) (1993). Accordingly, our decision is vacated, the judgment of the Supreme Court is made the judgment of this court, and the trial court’s judgment is reversed.

Judgment reversed.

Pope, C. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A1000.
    HESTER v. HUMAN et al.
    (439 SE2d 50)
   McMurray, Presiding Judge.

This is a personal injury action arising from injuries plaintiff Hester received while using a dirt boring machine manufactured by defendant Charles Machine Works, Inc. d/b/a Ditch Witch. The machine was employing a tool known as a “back reamer” (used to pull cable through a hole bored under a roadbed) manufactured by defendant McLaughlin Manufacturing Company. Defendant Larry D. Human d/b/a Ditch Witch of Albany is a retailer of such equipment and provided the equipment plaintiff was using, as well as related instructional manuals, to plaintiff’s employer.

The amended complaint alleges that the machinery was defectively designed and manufactured causing the malfunction which injured plaintiff. Plaintiff also maintains that the instructional materials distributed with the machines were defective in that they instructed the user to place himself in a place of danger while using the machinery.

This action was originally filed in the State Court of Fulton County. On February 11, 1992, that court entered an order granting a motion to dismiss plaintiff’s action against defendant Charles Machine Works, Inc. This defendant had ostensibly been served pursuant to OCGA § 14-2-1510 (b). The State Court of Fulton County determined that this Oklahoma corporation had not been properly served since there had been no service upon any one of the list of corporate officers specified in the statute.

On May 27, 1992, the State Court of Fulton County entered an order dismissing plaintiff’s action against defendant McLaughlin Manufacturing Company and transferring the case to the State Court of Dougherty County. This order contained a finding that there was no just reason for delay and stated that the order was the final judgment as to defendant McLaughlin Manufacturing Company.

On December 10, 1992, the State Court of Dougherty County entered a summary judgment in favor of defendant Human and against plaintiff. Plaintiff filed his notice of appeal on December 30, 1992 from the orders of the State Court of Fulton County granting the motions to dismiss of defendants Charles Machine Works, Inc. and McLaughlin Manufacturing Company, as well as from the order of the State Court of Dougherty County granting summary judgment in favor of defendant Human.

Defendant McLaughlin Manufacturing Company moved to dismiss plaintiff’s appeal insofar as it sought review of the order of the State Court of Fulton County, dated May 27,1992, which dismissed it from this action, contending that such dismissal was a final judgment in accordance with OCGA § 9-11-54 (b) and that no timely appeal had been taken from that order. The State Court of Dougherty County granted defendant McLaughlin Manufacturing Company’s motion to dismiss the appeal as to it, via an order filed February 9, 1993. Held:

1. Two of plaintiff’s enumerations of error relate to the dismissal of his action against defendant McLaughlin Manufacturing Company and the dismissal of his appeal in regard to that issue by the trial court. The ruling or order entitling plaintiff to bring this appeal is the grant of summary judgment in favor of defendant Human on December 10, 1992. “Pursuant to OCGA § 5-6-34 (d), [plaintiff] would be entitled to enumerate as error any other prior or contemporaneous rulings in the case. Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980). [Plaintiff] would not, however, be entitled to enumerate as error any and all other subsequent rulings in the case. An ‘enumeration cannot be considered . . . (if) the ruling that it complains of . . . was entered . . . subsequent to filing of the notice of appeal. . . . (Cit.)’ Cates v. Cates, 225 Ga. 612, 613 (2) (170 SE2d 416) (1969). ‘(J)udgments (can)not be considered (on appeal) . . . (if) rendered . . . subsequent to the judgment appealed from. (Cit.)’ Lowe v. Watson, 228 Ga. 393 (1) (185 SE2d 774) (1971). ‘(I)ssues raised . . . (which are) not . . . encompassed within the final order from which the appeal has been taken, . . . may not . . . (be) raise(d) (on appeal), either in enumerations of error or through arguments in briefs of counsel. (Cits.)’ ” Costanzo v. Jones, 200 Ga. App. 806, 811 (3) (409 SE2d 686). The record does not contain any notice of appeal from the order of February 9, 1993, dismissing plaintiff’s appeal as to defendant McLaughlin Manufacturing Company. Accordingly, the enumeration of error which complains of that order may not be considered.

Nor may we address the merits of plaintiff’s enumeration of error concerning the order of May 27, 1992, dismissing plaintiff’s action against defendant McLaughlin Manufacturing Company. We are without any jurisdiction over that part of plaintiff’s appeal since it has been dismissed by an order of the trial court acting within its jurisdiction. Minor v. Minor, 173 Ga. App. 428 (327 SE2d 229). See Attwell v. Lane Co., 182 Ga. App. 813, 814 (1) (357 SE2d 142) concerning a trial court’s authority to dismiss notices of appeal where the decision or judgment was not then appealable.

2. The grant of the motion to dismiss plaintiff’s action against defendant Charles Machine Works, Inc. was not error since it was conclusively established that plaintiff failed to properly serve the summons and complaint upon this defendant. Service by mail was attempted pursuant to OCGA § 14-2-1510. However, OCGA § 14-2-1510 (b) requires that the mail, registered or certified, return receipt requested, be addressed to “the chief executive officer, chief financial officer, or secretary of the foreign corporation, or a person holding a position comparable to any of the foregoing. ...” The. process mailed to this defendant was addressed to the corporation and was not directed to any of the specified corporate officers. Contrary to plaintiff’s assertion, the actual receipt of the envelope by a “risk manager” employed by the defendant corporation did not cure this deficiency in service. Anderson v. Hughes, 196 Ga. App. 186, 189 (395 SE2d 623); Devendorf v. Midkiff, 184 Ga. App. 722 (362 SE2d 398).

3. Nor do we find any error in the grant of summary judgment in favor of defendant Human. The uncontroverted evidence establishes that defendant Human was merely a retailer who sold the equipment involved in the same condition in which he received it, was aware of no defects in the equipment, and had never heard of anyone being injured in the manner in which plaintiff’s injury occurred. As a retailer rather than manufacturer, defendant Human is not liable under a theory of strict liability in tort. OCGA §§ 51-1-11 and 51-1-11.1. Nor is defendant Human liable under a negligence theory since under these circumstances he was entitled to assume that the manufacturer has done its duty in properly constructing the equipment and in not placing on the market a defective machine. Ryals v. Billy Poppell, Inc., 192 Ga. App. 787, 788 (386 SE2d 513); Jackson v. Intl. Harvester Co., 190 Ga. App. 765 (2), 766 (380 SE2d 306). Plaintiff argued that defendant Human is liable for disseminating misleading information concerning the safe use of the equipment and relies upon cases such as Smith v. Clarke Hardware Co., 100 Ga. 163 (28 SE 73); Hig don v. Ga. Winn-Dixie, 112 Ga. App. 500 (145 SE2d 808) for the proposition that a retailer may be liable when it undertakes to instruct a user in the operation and use of the product but does so negligently. However, the only instructional materials provided by defendant Human were the safety literature and operating manuals which he received from the manufacturers and defendant Human did not attempt to alter or supplement those materials, but did pass on all such materials to plaintiff’s employer. Such does not amount to attempted instruction on the part of defendant Human, but is governed by the same principles which relate to distribution of the equipment itself.

Decided November 29, 1993

Reconsideration denied December 14, 1993

Morris & Webster, Craig A. Webster, for appellant.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Dennis, Corry, Porter & Gray, James S. Strawinski, Pamela J. Byrd, Duncan & Mangiafico, Edgar S. Mangiafico, Jr., for appellees.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A93A1116.
    MASSIE et al. v. ROSS.
    (439 SE2d 3)
   Cooper, Judge.

Appellee filed a lawsuit to recover for personal injuries she received when the car in which she was a passenger was struck by a truck driven by appellant Tracy Massie (Massie) and owned by his employer, appellant Wiley Barber d/b/a Barber Trucking Company (Barber). The jury returned a verdict in favor of appellee, awarding damages in the amount of $575,000, and Massie and Barber appeal from the judgment entered on the verdict.

1. Appellants contend that the trial court erred in charging the jury that appellee could recover for her future medical expenses because there was no evidence as to the amount of such expenses. “To warrant future medical expenses, there must be evidence that the injury will require that future medical attention. [Cits.]” Gusky v. Candler Gen. Hosp., 192 Ga. App. 521, 524 (6) (385 SE2d 698) (1989). Appellee’s physician testified that due to the severity of appellee’s injuries, appellee would likely require future surgery in order to have a chance at a full recovery. Appellants argue, however, that even though the evidence established that future medical treatment was probable, there was no evidence regarding the cost of that future medical treatment. Appellee’s physician testified that appellee underwent a surgical procedure which involved the reaming out of her femur canal and insertion of a large rod and screw into her femur. She also stated that future surgery would likely involve the same type of procedure. In addition, appellee introduced into evidence a detailed list outlining her present medical expenses, including the cost of her previous surgeries. “Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.” (Citations and punctuation omitted.) Candler v. Davis & Upchurch, 204 Ga. App. 167, 170 (4c) (419 SE2d 69) (1992). We conclude that the evidence submitted by appellee was sufficient to authorize the charge on future medical expenses. Bennett v. Haley, 132 Ga. App. 512 (1) (208 SE2d 302) (1974).

Decided September 29, 1993

Reconsideration denied December 14, 1993

Jenkins & Eells, Frank E. Jenkins III, Steven J. Misner, for appellants.

Jeffrey L. Sakas, Gary M. Cooper, for appellee.

2. Appellants also argue that the trial court’s charge on OCGA § 40-6-52 (c) was erroneous. That Code section makes it unlawful for trucks to operate in the left lane on two-laned streets, except when the truck is passing another vehicle or preparing to make a left turn. OCGA § 40-6-52 (a) defines a truck as any vehicle equipped with more than six wheels. Appellants contend that there was no evidence that the truck which collided with appellee’s car had more than six tires. “To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be made in respect to it. [Cits.]” Jones v. Maghdoussian, 159 Ga. App. 839, 841 (1) (285 SE2d 267) (1981). Appellee introduced photographs showing the skid marks left by the truck, which appear to show twin parallel wheels on each side of an axle. The driver of the truck testified that the skid marks were made by the rear axles of the truck. Accordingly, the jury could infer from the number of skid marks that the truck had more than six tires. Although there was no direct evidence reflecting the number of tires on the truck, there was evidence from which the jury could conclude that the truck had more than six tires. Therefore, it was not error for the trial judge to give the charge.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1384.
    RAMIREZ v. THE STATE.
    (439 SE2d 4)
   Cooper, Judge.

This case marks appellant’s fourth appeal to this court. Appellant’s sole enumeration of error is the trial court’s denial of his motion for discharge and acquittal pursuant to OCGA § 17-7-170.

In February 1988, during the January 1988 term of the Gwinnett Superior Court, appellant was indicted for trafficking in cocaine and filed a demand for speedy trial pursuant to OCGA § 17-7-170. The Gwinnett Circuit has regular terms of court in January, March, May, July, September and November. See OCGA § 15-6-3 (20). Appellant was tried and convicted during the March term, but that conviction was reversed in appellant’s first appeal to this court. See Ramirez v. State, 190 Ga. App. 889 (380 SE2d 323) (1989). Appellant’s case was called for retrial in August 1989, and appellant filed a motion for discharge and acquittal which was denied by the trial court. On appeal, we affirmed the trial court’s denial of that motion in Ramirez v. State, 196 Ga. App. 11 (395 SE2d 315) (1990). Appellant’s second trial resulted in a mistrial, and his third trial, which took place in January 1991, resulted in conviction. However, that conviction was reversed in Ramirez v. State, 205 Ga. App. 217 (422 SE2d 3) (1992). The remittitur was filed in the clerk’s office on October 26, 1992, but the judgment on the remittitur was not filed until November 4, 1992. In February 1993, appellant’s case was again called for trial, and appellant filed a motion for discharge and acquittal on the ground that he was not tried within two regular terms of court. The trial court denied the motion and this direct appeal follows. Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985).

Appellant contends that his demand for speedy trial became operative on October 26, 1992, when the remittitur was filed with the clerk and that the failure to try him by the end of the November term entitled him to discharge and acquittal under OCGA § 17-7-170. The State argues that appellant’s demand for speedy trial did not become operative until November 4, 1992, when the judgment was entered on the remittitur. The Supreme Court of Georgia provided some guidance on this question in Dennis v. Grimes, 216 Ga. 671 (118 SE2d 923) (1961), a habeas corpus case in which there was a demand for speedy trial pursuant to Ga. Code Ann. § 27-1901, the predecessor to OCGA § 17-7-170, and a reversal of that conviction on appeal. The Supreme Court stated that “the new trial . . . was granted upon the remittitur of this court being made the order of the lower court” (Emphasis supplied.) Dennis, supra at 672 (2). Appellant was tried within two terms of the date the remittitur was made the order of the trial court. In accordance with Dennis, we find no error with the trial court’s denial of appellant’s motion for discharge and acquittal.

Decided October 26, 1993

Reconsideration denied December 14, 1993

Michael M. White, for appellant.

Daniel J. Porter, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1440.
    A93A1441.
    STEWART TITLE GUARANTY COMPANY v. COBURN. STEWART TITLE GUARANTY COMPANY v. WILLARD.
    (439 SE2d 69)
   McMurray, Presiding Judge.

This is a suit on a note executed by defendant Coburn in favor of Great Western Mortgage Company in connection with Coburn’s purchase of a certain house and lot. Defendant Coburn subsequently sold the real property to SYFTKOG, Inc., which via a contemporaneous closing or “flip” sold it to Northern. Northern financed his purchase of the property through Fulton Federal Savings & Loan Association, executing a note and security deed in favor of this lending institution.

In connection with the transfer of the property to Northern, plaintiff Stewart Title Guaranty Company issued a policy of title insurance assuring among other things the priority of Fulton Federal’s security interest in the property. The Fulton Federal loan proceeds should have been applied in substantial part to pay the note executed by Coburn, however, the check sent to Great Western by the closing attorney was dishonored and the note remains unpaid. After receipt of the dishonored check and default upon its note, Great Western, which had also received from Coburn a deed to secure debt to the property, began advertising the property for foreclosure. Fulton Federal then submitted notice of these circumstances to plaintiff and demanded indemnity and protection of its security interest. Plaintiff filed an action in federal court against Fulton Federal seeking declaratory and injunctive relief. Afterwards, plaintiff and Fulton Federal entered into a written agreement pursuant to which plaintiff purchased the Coburn note and security deed from Great Western and then, by quitclaim deed, released its rights under the security deed thereby giving the Fulton Federal security deed first priority. Northern had defaulted on his loan from Fulton Federal and pursuant to the agreement with plaintiff, Fulton Federal foreclosed and sold the property and the proceeds of the sale of the property were placed in an interest bearing escrow account pending settlement or resolution of the federal litigation.

Plaintiff was obligated under the agreement with Fulton Federal to pursue collection of the Coburn note. This action on the Coburn note was filed against Coburn and a second defendant. The second defendant, Willard, is alleged to be a partner with Coburn in a scheme to profit from the resale of the house.

Case No. A93A1440 is taken from the grant of summary judgment in favor of Coburn and the denial of plaintiff’s motion for summary judgment against Coburn. Case No. A93A1441 is taken from the grant of summary judgment in favor of defendant Willard and against plaintiff. Held:

1. The state court determined that the plaintiff’s claims are barred by its failure to comply with the requirements of the Georgia confirmation statute, OCGA § 44-14-161. In other words the state court held that the agreement between plaintiff and Fulton Federal evidences the existence of a cooperative enterprise and an election by them to foreclose on the collateral rather than proceed on the “Note,” apparently referring to the note being sued on in this action, the Coburn note. The state court further holds that Fulton Federal’s failure to confirm the foreclosure should be imputed to plaintiff and operates to bar plaintiff’s attempts to recover on the note from defendant Coburn.

The state court’s view of the facts fails to acknowledge the existence of the second note, that is, the note executed by Northern to Fulton Federal, or the fact that the only debt secured by the deed to secure debt which was foreclosed was the Northern note. This Court has previously held that if there are separate debts arising from separate contractual obligations, failure to confirm a foreclosure arising from one of the obligations does not bar an action on the separate obligation. Murray v. Hasty, 132 Ga. App. 125, 126 (1) (207 SE2d 602). The present action is not to recover a deficiency judgment on the debt secured by the deed to secure debt which was foreclosed, but to recover on an independent, separate, and, following the release of rights secured under the Coburn security deed, unsecured obligation. See also Turner v. Commonwealth Mtg. Assurance Co., 207 Ga. App. 428, 429 (1) (428 SE2d 398); Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747 (1) (426 SE2d 645); Clements v. Fleet Finance, 206 Ga. App. 736 (426 SE2d 910); Kennedy v. Trust Co. Bank of Gwinnett County, 160 Ga. App. 733 (288 SE2d 87).

Arguments that the agreement between plaintiff and Fulton Federal amounts to an attempt to avoid the deficiency statute via the use of illusory forms such as in Redman Indus. v. Tower Properties, 517 FSupp. 144 (N. D. Ga.) are incorrect.. In that case, the court found that the suit in question resembled a deficiency judgment action in substance so that as a matter of public policy the debtor was entitled to the protection of the confirmation statute. In the case sub judice, there is no attempt by plaintiff, alone or in consort with Fulton Federal, to subject Coburn to double payment of his debt. Any loss suffered by Coburn arose from the actions of the closing attorney whose check was dishonored. And finally, it should be noted that the present action may not be construed to be a deficiency action since there has been no foreclosure and sale of any property owned by Coburn. Coburn willingly sold the real property involved in this case and was not involved with the foreclosure which occurred subsequently. The state court erred in granting summary judgment in favor of Coburn.

However, the state court did not err in denying plaintiff’s motion for summary judgment against Coburn. Plaintiff’s motion for summary judgment before the state court was directed to the whole case and there was no request for the grant of a partial summary judgment. On appeal, plaintiff seeks a partial summary judgment against Coburn on the liability issue but does not seek a final judgment. The issue which plaintiff now seeks to assert was not preserved by having been raised below. Under these circumstances the order denying plaintiff’s motion for summary judgment against Coburn must be affirmed. Butts v. Ga. Cas. &c. Co., 179 Ga. App. 819, 821 (348 SE2d 94).

2. The remaining issues concern the grant of summary judgment to defendant Willard. The evidence stated in the light most favorable to plaintiff, the party opposing the motion for summary judgment, shows that: Defendants Coburn and Willard formed a corporation, OBU Construction & Development, Inc., through which to conduct a home construction business. The corporation obtained a construction loan and built a house which had not been sold when the loan came due. In order to pay the construction loan which both had guaranteed and obtain permanent financing on the house until it sold, Coburn purchased the house and executed the loan from Great Western, including the note upon which this action is predicated. While the loan was executed in Coburn’s name, Willard arranged for the loan. Willard filled out the loan application, paid the loan application fee, obtained and paid for an appraisal of the property, reviewed the closing documents and attended the closing. OBU Construction & Development, Inc., the jointly owned corporation reimbursed Coburn for the down payment he made in connection with the purchase of the house and made the two payments that were made on the Great Western Loan. After Coburn sold the house, Willard shared in the proceeds of the sale.

The question presented is whether Willard was a partner with Coburn in the purchase and sale of the house. The order granting summary judgment in favor of Willard is explicitly predicated on the fact that Willard did not sign the Great Western note executed on behalf of Coburn and that there is nothing on the face of that note or associated documents which shows that it was executed on behalf of Willard. However, the absence of Willard’s signature or an equivalent is not determinative of the question of whether he may be liable thereon since there is evidence that the note was executed in furtherance of the goals of a partnership between Coburn and Willard. Every partner is an agent of the partnership for the purpose of its business and an act of a partner which is not apparently for the carrying on of the business of the partnership binds the partnership when authorized by the other partners. OCGA § 14-8-9 (1, 2); Shirley v. Couch, 177 Ga. App. 436 (339 SE2d 648). See also North Carolina Nat. Bank v. Wallens, 31 N.C. App. 721 (230 SE2d 690). Since there is evidence that Coburn was acting on behalf of a partnership including Willard, and with Willard’s actual knowledge and consent, in obtaining the loan from Great Western, Willard, as a partner, may be liable for that loan. Genuine issues of material fact remain for a trier of fact, therefore the state court erred in granting summary judgment in favor of defendant Willard.

Decided November 30, 1993

Reconsideration denied December 14, 1993

Morris, Manning & Martin, Joseph R. Manning, Laura L. Tate, Frank W. Deborde, for Stewart Title Guaranty Co.

Bodker, Ramsey & Andrews, Stephen C. Andrews, for Coburn.

Aiken & Ward, Frederic S. Beloin, for Willard.

Judgment affirmed in part and reversed in part in Case No. A93A1440. Judgment reversed in Case No. A93A1441.

Johnson and Blackburn, JJ., concur.


text:
    A93A1467.
    BANCA NAZIONALE DEL LAVORO v. SMS HASENCLEVER, GMBH.
    (439 SE2d 502)
   McMurray, Presiding Judge.

SMS Hasenclever, GmbH of Dusseldorf, Germany (“SMS”) filed an action against Banca Nazionale Del Lavoro (“BNL”) for wrongful dishonor of letters of credit issued by the Central Bank of Iraq (“CBI”) and confirmed by BNL’s promise to honor the letters of credit pursuant to OCGA § 11-5-107 (2). BNL admitted endorsing CBI letters of credit and issuing confirmation certificates in favor of SMS, but raised several defenses justifying rejection of payment demands submitted by SMS. BNL filed a motion to dismiss based on SMS’s failure to join an indispensable party and the parties filed opposing motions for summary judgment.

SMS is a German corporation that contracted to sell forging machinery and spare parts to an Iraqi enterprise known as Nassr Enterprise for Mechanical Industries (“NEMI”). CBI financed most of the transaction via letters of credit and BNL confirmed the letters of credit by agreeing to be responsible for payment to SMS upon presentation of documents affirming delivery and acceptance of the goods in Iraq. Specifically, BNL issued confirmation certificates providing for payment of sixty percent of the value of equipment upon presentation of documents proving shipment to Iraq, ten percent of the value of equipment upon tender of documents proving arrival of goods in Iraq and ten percent of the value of equipment upon presentation of documents proving NEMI’s possession and acceptance of goods.

On July 11,1990, SMS presented documents confirming two June 20, 1990, shipments to Iraq. The shipping documents satisfied all conditions for payment of 60 percent of the value of the goods shipped, but also included the following certification: “ ‘We declare that the goods are neither of Israeli origin nor do they contain Israeli materials nor are they beeing [sic] exported from Israel.’ ” In response, BNL transmitted the following facsimile to SMS: “ON BOTH SETS OF DOCUMENTS BOTH INVOICE AND CERTIFICATE OF ORIGIN SHOW ANTI-ISRAELI BOYCOTT DECLARATION WHICH ARE CONTRARY TO U. S. EXPORT LAWS. THEREFORE DOCUMENTS REMAIN UNPAID AT OUR COUNTERS AT YOUR DISPOSAL PENDING YOUR URGENT INSTRUCTIONS. . . . PLEASE NOTE THAT WE MUST RECEIVE YOUR RESPONSE BY JULY 19,1990 AFTER THIS DATE WE WILL RETURN DOCUMENTS [FOR] OUR FULL DISCHARGE.” SMS then attempted to acquire shipping documents that did not include the anti-Israeli certifications. However, the endeavor floundered because Iraqi officials were unavailable to confirm the replacement documents.

SMS later presented documents confirming arrival of the goods in Iraq. BNL refused these presentations, claiming the ten percent arrival on-site payments were contingent upon the sixty percent shipping payments.

The trial court denied BNL’s motion to dismiss and motion for summary judgment and granted SMS’s motion for summary judgment, awarding damages in excess of $17,309,639. This appeal followed. Held:

1. In its first and second enumerations, BNL contends the trial court erred in denying its motion for summary judgment and granting summary judgment in favor of SMS.

“A letter of credit transaction basically involves three contracts. The contract of sale between the buyer and seller. A contract between the buyer and a bank under which the bank issues the ‘letter of credit’ on behalf of its customer — the buyer. The third contract is between the bank and the seller, the beneficiary of the letter of credit — in essence stating, upon presentation of the documentation required by the letter of credit I will honor your draft.” First Nat. Bank of Atlanta v. Wynne, 149 Ga. App. 811, 814 (1) (256 SE2d 383). “A confirming bank by confirming a credit becomes directly obligated on the credit to the extent of its confirmation as though it were its issuer. . . .” OCGA § 11-5-107 (2).

In the case sub judice, it is undisputed that SMS strictly complied with all terms and conditions for payment under the confirmation certificates issued by BNL. See First Nat. Bank of Atlanta v. Wynne, 149 Ga. App. 811, 814 (1), 815-817, supra. However, BNL argues that it is not obliged to pay because SMS impaired its ability to collect from CBI by presenting shipping documents with anti-Israeli certifications. Specifically, BNL reasons that any future attempt to seek reimbursement via transmission of the shipping documents to CBI may constitute a violation of 50 USCA § 2402 (5), a federal statute prohibiting letters of credit which contain a condition or requirement for compliance with a boycott of a country friendly to the United States. 15 CFR § 769.2 (f) (1).

“One cannot ordinarily utilize advantageously his own fault as an exit of escape from the performance of his contractual obligations.” 17A CJS 601, Contracts, § 459. See A. M. Kidder & Co. v. Clement A. Evans & Co., 111 Ga. App. 484, 487 (1), 488 (142 SE2d 269). In the case sub judice, any future difficulty BNL may encounter in presenting documents to CBI for reimbursement because of a violation of 50 USCA § 2402 (5) would necessarily be the result of its own violation of federal antiboycott law. This is not recognition, however, that BNL has violated federal law. It is simply acknowledgment that any such violation with regard to implementing letters of credit which contain conditions or requirements for compliance with a prohibited foreign boycott “applies only with respect to a United States person’s activities taken with intent to comply with, further, or support an unsanctioned foreign boycott.” 15 CFR § 769.2 (f) (6). It thus becomes apparent that the presence of shipping documents with anti-Israeli certifications is not the stumbling block for reimbursement from CBI, but is simply circumstantial proof that such a hazard exists. See 15 CFR § 769.1 (e) (5). Consequently, BNL’s defense that it was not obligated to honor the confirmation certificates because SMS impaired its ability to collect from CBI by presenting shipping documents with anti-Israeli certifications must fall.

Decided October 28, 1993

Reconsideration denied December 14, 1993

King & Spalding, Richard A. Schneider, Jobeth Halper, for appellant.

Alston & Bird, Steven M. Collins, Patrick M. Norton, Jennifer B. Moore, for appellee.

2. BNL contends the parties entered into an accord and satisfaction when SMS agreed to submit replacement documents (without anti-Israeli certifications) in exchange for BNL’s promise to accept the replacement documents after expiration of time for payment under the confirmation certificates. This assertion is not supported by the record.

The trial court did not err in granting SMS’s motion for summary judgment and in denying BNL’s motion for summary judgment.

3. In its final enumeration, BNL contends the trial court erred in denying its motion to dismiss based on SMS’s failure to join “the United States Office of Antiboycott Compliance” as an indispensable party. BNL claims that joinder of the federal agency charged with enforcing 50 USCA § 2402 (5) is necessary to determine whether BNL may transmit the shipping documents with anti-Israeli certification to CBI without violating 50 USCA § 2402 (5), thus resolving the validity of BNL’s defense that SMS impaired its ability to collect from CBI.

A party is indispensable if full justice cannot be done in the party’s absence. OCGA § 9-11-19 (a) (1); Pickett v. Paine, 230 Ga. 786, 796 (4a) (199 SE2d 223). In Division 1 of this opinion, a determination of any violation of 50 USCA § 2402 (5) was unnecessary to resolve BNL’s claim that SMS impaired its ability to gain reimbursement from CBI. Consequently, no reason exists for joining the federal agency charged with enforcing 50 USCA § 2402 (5).

The trial court did not err in denying BNL’s motion to dismiss.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

       “Intent in this context means the reason or purpose for one’s behavior. It does not mean that one has to agree with the boycott in question or desire that it succeed or that it be furthered or supported. But it does mean that the reason why a particular prohibited action was taken must be established.” 15 CFR § 769.1 (e) (4).


author: Beasley, Presiding Judge.

text:
    A93A1470.
    DIXIE DINERS ATLANTA, INC. et al. v. GWINNETT FEDERAL BANK, FSB.
    (439 SE2d 53)
   Beasley, Presiding Judge.

This is a suit on a promissory note. Defendants, the borrower corporation and two individual guarantors, appeal from the trial court’s grant of final summary judgment to the plaintiff bank on its main claim and on defendants’ counterclaim.

On January 8, 1990, Dixie Diners Atlanta, Inc. d/b/a Uncle Sam’s Diners executed a promissory note in favor of Gwinnett Federal Savings & Loan Association, later known as Gwinnett Federal Bank, FSB, for a loan in the principal amount of $60,025. On the same day, Jones and Crawford each executed an individual guaranty of the loan. Dixie Diners received the $60,025. No payments were ever made on the loan. On June 21, 1991, Gwinnett Federal made demand on Dixie Diners, Jones, and Crawford for $69,341.72, the total principal and interest due under the note as of May 31, 1991. The money was not paid and the present action against Dixie Diners, Jones, and Crawford was filed on August 1, for the amount of the demand plus attorney fees in an amount to be proven at trial.

The three defendants counterclaimed, alleging in pertinent part as set out in the next three paragraphs:

The promissory note and guarantees were part of a larger guaranteed loan arrangement involving Gwinnett Federal, the defendants, and the U. S. Small Business Administration (SBA). On August 31, 1988, The Merchant Bank of Atlanta made a $500,000 SBA guaranteed loan to Dixie Diners for a restaurant venture. This loan was guaranteed by Crawford and Jones. In the transaction, the defendants dealt with Merchant Bank’s agent, Barnes. In their “zeal” to make the loan and obtain the SBA guarantee, Merchant Bank and Barnes negligently failed to adhere to “prudent lending practices and basic loan principles” required by certain agreements executed in connection with the SBA loan and specific federal statutes and regulations.

Approximately three months into the life of the SBA loan, Merchant Bank transferred the loan “without recourse” to Gwinnett Federal, prompted by Barnes’ move to Gwinnett Federal. Barnes continued in charge of the loan, with the “negligent and imprudent loan management practices” continuing. Defendants paid approximately $12,000 to have the loan transferred from Merchant Bank to Gwinnett Federal. After the transfer, Barnes continued to make disbursements under the SBA loan even though he had full knowledge of adverse changes in the loan’s status. Due to Gwinnett Federal and Barnes’ mismanagement of the loan and their failure to provide defendants with the contemplated “aid, counsel, assistance], and protection],” the restaurant was not opened for almost a year after the SBA loan was consummated.

Gwinnett Federal made the loan at issue to cover cost overruns, unanticipated site improvement costs, and acute shortage of operating capital, all of the problems being directly attributable to the negligence of Barnes and Gwinnett Federal. SBA apparently was not notified of the loan at issue. Because of inadequate capital and management problems, the restaurant closed after one year of operation and six months after the present loan was made. Defendants were entitled to recover against Gwinnett Federal for ordinary negligence and negligence per se in that the bank violated various statutory, regulatory, and contractual standards of care.

The three defendants also raised defenses: the bank was estopped to collect the balance on the note because the note was unenforceable, as the circumstances of its creation rendered it illegal and void as against public policy; the bank was estopped to collect the balance on the note because of representations made by the bank to defendants at the time the note was made in the context of a “confidential” relationship between defendants and the bank’s agent Barnes, namely that such debt would not be separately collected but would be a part of the overall SBA loan arrangement; the bank treated both loans as a “package” and released the individual guarantors by its repeated offers of “de facto extensions” to Dixie Diners on both debts; defendants had a right of recoupment against the bank for damages suffered from its alleged negligence.

In challenging the grant of summary judgment, defendants assert six separate enumerations of error. The common assertion is that the court improperly rejected their affirmative defenses and counterclaim. The reason given is that it erroneously accepted the bank’s theory that the affirmative defenses and counterclaim arose out of facts surrounding an earlier and separate SBA loan and did not constitute a legally cognizable defense to the suit on the note at issue. Defendants also complain that “[notwithstanding the non-applicability of OCGA § 9-11-52 (a) to motions for summary judgment,” the trial court erred “in failing to articulate for the benefit of the Defendants any meaningful explanation for why their defenses and [counterclaim failed to raise any material issue of disputed fact,” and by its silence, the court contravened the 1983 Georgia Constitution, Art. I, Sec. I, Par. I and Art. I, Sec. I, Par. XI.

1. Defendants fail to show how the lack of elaboration in the court’s ruling contravenes the due process and jury trial provisions of the state constitution. The constitution mandates the adoption of court rules which aim to achieve “the speedy, efficient, and inexpensive resolution of disputes and prosecutions.” 1983 Ga. Const., Art. VI, Sec. IX, Par. I. The law itself, in OCGA § 9-11-56, authorizes summary judgment, when appropriate, as a means short of jury trial to effect the constitutional goals. The Civil Practice Act targets the same goals by requiring that they be construed “to secure the just, speedy, and inexpensive determination of every action.” OCGA § 9-11-1.

In keeping with this objective, and because an appellate court must review summary judgment de novo, “[t]he trial court is not required to make express findings of fact and conclusions of law in ruling on motions for summary judgment [pursuant to OCGA § 9-11-56], although they are helpful to the appellate courts and instructive to the parties. [Cits.] ... On appeals from grants of summary judgment, it is this court’s function to examine the record and determine whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains. [Cit.]” Lewis v. Rickenbaker, 174 Ga. App. 371, 372 (330 SE2d 140) (1985). So we must move on, although unenlightened by the trial court’s analysis.

2. The record supported the bank’s theory of the case.

The evidence is without dispute that Gwinnett Federal made out a prima facie right to judgment on the note and that the individual defendants were liable for payment of the note as guarantors thereof. See OCGA § 11-3-307. The burden shifted to defendants to establish an affirmative defense. Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (1) (388 SE2d 43) (1989). This they failed to do.

The claims of oral agreement by the bank through its agent Barnes that the loan at issue would become part of the SBA transaction and would not be collected separately, or that the individual guarantors on the note would not be pursued because of extensions granted the corporate debtor, do not establish a defense of release or discharge or any estoppel by the bank in attempting to collect on the debt from the three defendants. Even if such oral agreements were reached, the parol evidence rule precludes their enforcement. Richards v. First Union Nat. Bank of Ga., 199 Ga. App. 636, 637 (405 SE2d 705) (1991).

That rule was not avoided nor did an estoppel arise by virtue of an alleged “confidential” relationship between defendants and the bank through its agent, Barnes, existing prior to the time of the second loan. See Richards, supra at 637; Armstrong v. California Fed. Savings &c. Assn., 192 Ga. App. 508, 510 (3) (385 SE2d 113) (1989). At most, defendants’ evidence in this regard showed that Barnes had experience, knowledge, and expertise in the area of SBA loans, that defendants did not, and consequently that they relied on Barnes in establishing and pursuing the SBA loan. “ ‘There is no confidential relationship between a bank and its customers merely because the customer had advised with, relied upon, and trusted the bankers in the past. [Cit.]’ . . . There is, moreover, particularly no confidential relationship between lender and borrower ... for they are creditor and debtor with clearly opposite interests. . . . [Cit.]” Pardue v. Bankers First Fed. Savings &c. Assn., 175 Ga. App. 814, 815 (334 SE2d 926) (1985). Furthermore, defendants offered no evidence that Barnes exercised a “controlling influence” over their wills, conduct, and interests such as would render the relationship one of confidence. See OCGA § 23-2-58; compare, e.g., Tigner v. Shearson-Lehman Hutton, Inc., 201 Ga. App. 713 (411 SE2d 800) (1991).

Decided November 29, 1993

Reconsideration denied December 14, 1993

Action on note. Cobb Superior Court. Before Judge Hicks, Senior Judge.

George E. Butler II, Dailey, Mattox, Chambliss & Bradley, Michael A. Dailey, for appellants.

Webb, Tanner & Powell, Anthony O. L. Powell, R. Jack Wilson, for appellee.

Lastly, there was no evidence of negligence so as to sustain the defenses of estoppel or recoupment or to save defendants’ counterclaim. The allegations of negligence leading to the demise of the debtors’ business venture flowed from the defendants’ characterization of the loan and note at issue as but part and parcel of one SBA financing arrangement. There simply was no admissible evidence to support this position or to counter the bank’s evidence that the note sought to be collected was not part of a larger SBA loan.

Summary judgment was properly granted to the bank on both the main claim and on defendants’ counterclaim.

Judgment affirmed.

Cooper and Smith, JJ., concur.


author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A93A1598.
    CRAWFORD et al. v. ODOM.
    (439 SE2d 27)
   McMurray, Presiding Judge.

Jackie D. Crawford and Frances Crawford filed an action against Regina Bell, Parnell Odom and Jim Wright (defendants), alleging defendants duped them into purchasing a structurally defective house by concealing portions of an official Georgia wood infestation report that revealed extensive termite damage to the premises. Parnell Odom filed a motion for summary judgment and his affidavit, deposing that he is an attorney licensed to practice law in the State of Georgia and that his law firm was hired by Bell and the Crawfords to implement a contract the parties executed for the sale of Bell’s house to the Crawfords. Odom deposed that the contract required Bell to provide the Crawfords with a wood infestation report at the time of closing; that Jim Wright’s real estate firm informed him before closing that a pest control company had inspected the premises and “found some termite infestation and some termite damage” and that the house was to be repaired and treated for termites before closing. Odom further deposed that he gave the Crawfords a three-page official Georgia wood infestation report at closing which indicated previous termite infestation and damage and that “a discussion was held [at closing] with and among all parties outlining the repairs . . . made to the property.”

In opposition, Jackie Crawford filed his affidavit and deposed that he was only given a one-page wood infestation report at closing; that this report merely indicated that Bell’s house had recently been treated for subterranean termites and that defendants “assured [him at closing] that the only damage to the premises was to one floor joist and that [a carpenter] had repaired the floor joist.” Jackie Crawford also deposed that he discovered additional termite damage to the premises several weeks after the closing; that he went to Parnell Odom’s law office in an attempt to resolve the problem and that an employee at Parnell Odom’s law office then gave him a three-page wood infestation report which included a diagram indicating extensive termite damage throughout the house, a warning that the reported damage will not be corrected by the treating pest control company and a recommendation “that damage be evaluated by qualified expert.”

The trial court granted Parnell Odom’s motion for summary judgment. This appeal followed. Held:

“The law in Georgia is well-settled that ‘ “(i)n the purchase and sale of real estate there is an underlying principle of law to the effect that one cannot be permitted to claim that he has been deceived by false representations about which he could have learned the truth of the matter and could have avoided damage. ...” Westbrook v. Beusse, 79 Ga. App. 654, 658.’ Grant v. Aulicky, 161 Ga. App. 817, 819 (290 SE2d 107) (1982). Accord Ross v. Smith, 173 Ga. App. 384 (326 SE2d 527), rev’d on other grounds, 255 Ga. 193 (336 SE2d 39) (1985).” Lester v. Bird, 200 Ga. App. 335, 337 (1), 338 (408 SE2d 147). However, this rule does not apply in the case sub judice as the Crawfords’ claim against Odom is not based on misplaced reliance on representations regarding damage they could have discovered upon inspection of the premises. It is based on an allegation that Odom deliberately withheld information collected by the pest control company so as to induce the Crawfords to purchase Bell’s termite damaged house.

“Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” OCGA § 23-2-53. In the case sub judice, it is undisputed that Odom had an affirmative duty to inform the Crawfords at closing of any and all information collected by the pest control company that inspected the premises. However, this evidence alone is insufficient to sustain the Crawfords’ claim that Odom duped them into purchasing Bell’s house by means of fraudulent nondisclosure of material facts. Two vital factors must be present to sustain such a cause of action: “1) the intentional concealment of a fact 2) for the purpose of obtaining an advantage or a benefit.” Ga. Real Estate Comm. v. Brown, 152 Ga. App. 323, 324 (262 SE2d 596).

“[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474). In the case sub judice, Jackie Crawford deposed that Odom failed to provide the Crawfords with two pages of a three-page termite report at closing. At best, this evidence may authorize a finding that Odom was negligent in performing his duties as closing attorney, but it does not show that Odom intentionally concealed a material fact for the purpose of obtaining an advantage or a benefit. Consequently, since the record does not give rise to genuine issues of material fact regarding Odom’s intent to mislead the Crawfords for some purpose beneficial to himself, the trial court did not err in granting Odom’s motion for summary judgment. See Ga. Real Estate Comm. v. Brown, 152 Ga. App. 323, 324, supra.

Judgment affirmed.

Birdsong, P. J., Andrews and Johnson, JJ., concur. Beasley, P. J., concurs in the judgment only. Pope, C. J., Cooper, Blackburn and Smith, JJ., dissent.

Decided November 17, 1993

Reconsideration denied December 14, 1993.

Linda R. Wells, for appellants.

Wood, Odom & Edge, Gus L. Wood III, for appellee.

Blackburn, Judge,

dissenting.

Although acknowledging the existence of a factual issue as to whether the defendant Odom provided the plaintiffs with the entire termite infestation report at the closing, the majority opinion concludes that the evidence at best authorizes only a finding of negligent performance by the defendant as closing attorney. In my view, however, that factual conflict is sufficient to warrant jury resolution of the fraud claim.

“Fraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.” OCGA § 23-2-57. “Rarely, if ever, can a fraudulent intent be shown by direct proof, and . . . slight circumstances are often sufficient to induce belief on the part of the jury that there was fraud between the parties.” Bucher v. Murray, 212 Ga. 259, 260 (91 SE2d 610) (1956).

In the instant case, the plaintiffs’ evidence showed that the defendant gave them only a one-page infestation report at closing, which was contradicted by the defendant’s evidence that the entire three-page report was provided. The parties similarly disputed the extent of the verbal discussion regarding the infestation report that occurred during the closing. Those factual disputes established by the evidence support a reasonable inference that the defendant intentionally concealed the full report for the purpose of closing the sale of the house. For that reason, I would reverse the trial court’s grant of summary judgment for the defendant.

I am authorized to state that Chief Judge Pope, Judge Cooper and Judge Smith join in this dissent.

       Although Parnell Odom deposed that he “personally reviewed with the [Crawfords] the [three-page] Official Georgia Wood Infestation Report[,]” this proof must defer to the Crawfords’ proof that Odom produced a one-page termite report at closing because on summary judgment the evidence must be viewed in a light most favorable to the non-moving party. Horton v. U. S. Fidelity &c. Co., 194 Ga. App. 881 (392 SE2d 25).

       Odom deposed that Bell and the Crawfords employed his law firm to implement a contract providing for the sale of Bell’s house to the Crawfords. Further, a copy of this real estate sales contract appears in the record and reveals that Bell was required to produce certification at closing, via a report from a pest control company, that the premises “has been inspected and found to be free from visible infestation and structural damages caused by termites and other wood destroying organisms or that if such infestation or structural damage or both existed it has been corrected.”


author: Blackburn, Judge.

text:
    A93A2213.
    HICKS v. THE STATE.
    (439 SE2d 56)
   Blackburn, Judge.

The appellant, James Michael Hicks, his brother, William Scott Hicks, and Greg Farmer were charged with two counts of aggravated assault, criminal damage to property in the first degree, and possession of a firearm during the commission of the assaults. Following a joint trial by jury with Greg Farmer, James Michael Hicks (hereinafter referred to as Hicks) was found guilty on both counts of aggravated assault and possession of a firearm during the commission of the aggravated assaults. He was acquitted of the criminal damage to property charge, and sentenced to ten years in prison with five of the ten-year prison sentence to be served on probation. His motion for new trial was subsequently denied by the trial court and this appeal followed.

The evidence viewed in the light most favorable to the jury’s verdict shows that Hicks had known the victims, Ronnie Price (hereinafter referred to as Price) and Rebecca Price, for several years prior to the incident in question. In December 1990, Price loaned Hicks approximately $300, and as collateral for the loan, Hicks pledged a 12-gauge shotgun, a six millimeter rifle, and a pair of binoculars. When Hicks did not repay the loan after he received his income tax refund as agreed, Price sold the items. Hicks subsequently made numerous demands for the return of his firearms. At Hicks’s request, Price unsuccessfully attempted to reacquire the firearms with funds provided by Hicks.

On May 5, 1991, the Prices were informed that Hicks wanted to harm Price because of his failure to return the firearms. Hicks, his co-defendants, and two other men, went to the Prices’ home in Farmer’s vehicle for the purpose of retrieving the firearms. The men were armed with Farmer’s .357 Magnum revolver and Hicks’s .22 rifle. Hicks stopped his vehicle on a public road at the top of the Prices’ driveway.

The Prices were at the back door of their mobile home attempting to enter when Hicks requested that Price come over to him and Price refused. Scott Hicks stood at the edge of the road wielding a .357 Magnum pistol while Greg Farmer stood on the passenger side of their vehicle armed with Hicks’s rifle. Rebecca Price retrieved a .22 rifle from her bedroom while her husband called the sheriff. Scott Hicks demanded that she put the weapon down or he would shoot her. She refused to do so and Scott shot through the door of the home. Rebecca returned the shots, and the two began to exchange gunfire. Price was wounded in the hand as a result of shots fired into the mobile home. Hicks fired two additional shots toward the mobile home as the defendants fled. A GBI examiner opined that the two bullets removed from the Prices’ home were fired by the .357 Magnum.

The men were subsequently apprehended nearby. Hicks voluntarily provided a statement to an investigating officer which was read into evidence. Hicks admitted confronting Price about the firearms on May 5, 1991, and informing Price that the two could resolve the firearms matter through fighting, or that Hicks could obtain a warrant for their return. Hicks further admitted that he fired two shots before they left. At trial, Hicks admitted that he appeared at the Prices’ home with the other men armed with weapons for the purpose of retrieving his firearms and fired two shots in the air. He maintained however that Rebecca Price fired the initial shot.

1. In his first enumeration of error, Hicks maintains that the trial court erred in failing to direct a verdict of acquittal on the offense of aggravated assault. We disagree.

Under Georgia law, participants in a crime may be charged with and convicted of the commission of the crime. OCGA § 16-2-20. While an individual’s mere presence when a crime is committed is not sufficient to warrant conviction, if the individual is present and assists in the commission of the crime, the individual may be convicted as a party thereto. Grace v. State, 262 Ga. 746 (4) (425 SE2d 865) (1993). Moreover, the jury is authorized to infer the individual’s criminal intent from conduct before, during, and after the commission of the crime. Williams v. State, 262 Ga. 677 (1) (424 SE2d 624) (1993).

In the case sub judice, it is undisputed that Hicks took an active role in the assault of the victims. Based upon his intention to retrieve firearms from Price, he armed himself with a weapon, and while accompanied by several men, went to the Prices’ residence, and in an effort to retreat, fired shots toward the home. Contrary to Hicks’s contention, this evidence showed more than Hicks’s presence at the scene. See Williams v. State, 208 Ga. App. 12 (430 SE2d 157) (1993). Although Hicks maintains that he did not conspire with Scott Hicks to assault the victims, “[conspiracy is a question for the jury,” and the jury was authorized by the evidence produced by the State at trial to resolve this issue against Hicks. Simpkins v. State, 149 Ga. App. 763, 768 (3) (256 SE2d 63) (1979).

“A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty.” (Citations and punctuation omitted.) Reid v. State, 206 Ga. App. 367 (1) (425 SE2d 315) (1992). “When, as in this case, a conviction is upheld on appeal because the evidence is such that a rational trier of fact could find appellant’s guilt beyond a reasonable doubt, according to the standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), it cannot possibly be said the evidence demanded a verdict of acquittal.” (Citation and punctuation omitted.) Id. at 368.

Decided November 29, 1993

Reconsideration denied December 14, 1993.

Jeffrey L. Floyd, for appellant.

Roger Queen, District Attorney, for appellee.

While Hicks further maintains that a directed verdict of acquittal was warranted based upon Rebecca Price’s statement that she was not afraid of the men, the offense of aggravated assault is based upon the victims’ reasonable apprehension of bodily injury by an assailant’s use of a deadly weapon. Williams v. State, supra.

2. Next, Hicks argues that the trial court erred in charging the defense of habitation, and such error warrants reversal. Hicks concedes that the trial court’s charge on habitation stated a correct principle of law, but maintains that it was not adjusted to the facts and improperly shifted the burden of proof to him. We disagree.

Under OCGA § 16-3-23, the “use of deadly force in defense of habitation is justified if the person ‘reasonably believes that the entry is made or attempted for the purpose of committing a felony therein.’ [Cit.]” Lee v. State, 202 Ga. App. 708, 711 (3) (415 SE2d 290) (1992). In the case sub judice, Hicks maintained at trial that Rebecca Price was the aggressor. The trial court charged the jury on habitation in the event that the jurors believed Rebecca Price initiated the gunfire. However, the evidence produced at trial showed that Rebecca Price reasonably believed that the use of a firearm was necessary to terminate the attack made upon their home by Hicks and his companions. Assuming arguendo that the charge was improperly given, considering the entire record and the overwhelming evidence of Hicks’s guilt of the offenses charged, any error in the giving of the charge was not prejudicial or harmful. McCrief v. State, 193 Ga. App. 667 (3) (388 SE2d 859) (1989). See Grier v. State, 212 Ga. 248 (7) (91 SE2d 749) (1956) (decided under former Code Ann. § 26-1011). Moreover, the trial court did not improperly shift the burden of proof to Hicks as “[t]he only burden which the trial court expressly placed on either of the parties was the burden placed on the state to prove [Hicks’s] guilt beyond a reasonable doubt.” Lemley v. State, 245 Ga. 350, 353 (2) (264 SE2d 881) (1980). Accordingly, a new trial was not warranted.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       Scott Hicks, the appellant’s brother, was also charged with possession of a firearm by a convicted felon and recidivism.

       Farmer was found guilty of both counts of aggravated assault and possession of a firearm during the commission of the assaults. He was acquitted of criminal damage to property in the first degree.


text:
    A93A2463.
    GOVERNMENT EMPLOYEES INSURANCE COMPANY v. HIRSH.
    (439 SE2d 59)
   Blackburn, Judge.

On February 15; 1992, David Matthews and Kathleen Hirsh were involved in a motor vehicle collision. Pursuant to an automobile insurance policy it issued covering Matthews’ vehicle, the Government Employees Insurance Company (GEICO) paid Matthews $2,392 for medical expenses incurred as a result of the injuries he sustained in the collision.

GEICO, as subrogee of its insured, subsequently commenced this action against Hirsh to recover those medical expense benefits. The trial court granted summary judgment for Hirsh on the grounds that the subrogation provision in GEICO’s insurance policy constituted a prohibited assignment of a personal injury claim, and this appeal followed.

OCGA § 44-12-24 provides in part that “[a] right of action for personal torts . . . may not be assigned,” and thus codifies the common law prohibition against assignment of personal injury claims. See Carter v. Banks, 254 Ga. 550 (1) (330 SE2d 866) (1985). In Wrightsman v. Hardware Dealers Mut. Fire Ins. Co., 113 Ga. App. 306, 307 (147 SE2d 860) (1966), involving an insurance policy clause subrogating the insurer to all rights of recovery of the injured person against the tortfeasor with regard to payment of any medical expenses under the policy, this court concluded that such a subrogation provision was void, as it “amounted to no more than an agreement to assign a personal injury claim to the insurer. ...”

The medical payment subrogation clause in GEICO’s policy provided: “If we make a payment under this coverage, we have the right to sue or otherwise recover the loss from anyone else who may be responsible. The person to whom we make payment must execute and deliver to us all necessary papers, help us to enforce our recovery right and do nothing to prejudice such rights.” This subrogation clause differs in no material aspects from the clause held to be void in Wrightsman.

GEICO relies upon dicta in Southern Guaranty Ins. Co. v. Robinson, 132 Ga. App. 121 (207 SE2d 599) (1974), suggesting that such subrogation clauses may have become enforceable upon the 1973 enactment of what is now OCGA § 51-1-32, which allows splitting a cause of action arising out of an automobile accident into separate personal injury and property damage claims. OCGA § 51-1-32 is consistent with OCGA § 44-12-24 in distinguishing between property damage and personal injury claims, and in no way addresses or alters the rule prohibiting assignment of personal injury causes of action.

GEICO argues that the trend in Georgia is to expand subrogation and assignment rights, noting as examples an insurer’s right of subrogation for uninsured motorist benefits paid to an insured under OCGA § 33-7-11 (f), and an employer’s or employer’s insurer’s subrogation lien under OCGA § 34-9-11.1 attaching to an injured employee’s recovery against a negligent third party to the extent of any workers’ compensation benefits paid to the employee. However, GEICO fails to cite any statute or decision of this court or the Supreme Court that would authorize overturning the principle set forth in Wrightsman and approved in Carter v. Banks, supra.

Decided November 29, 1993

Reconsideration denied December 14, 1993

Edward M. Harris, Vicki M. Knott, for appellant.

Parkerson, Shelf er & Connell, William S. Shelf er, Jr., for appellee.

As in Wrightsman, allowing GEICO to proceed in its own name against an alleged tortfeasor in a personal injury claim to recover the amount of medical benefits paid to its insured would violate the common law and statutory prohibition against assignments of personal injury causes of action. Accordingly, the trial court properly granted summary judgment for Hirsh.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A2226.
    KENNEDY v. PINELAND STATE BANK.
    (439 SE2d 106)
   McMurray, Presiding Judge.

Joyce Ann Kennedy brought an action against her former employer Pineland State Bank (“the bank”), alleging a member of the bank’s board of directors, William L. Lanier, sexually assaulted her at work while she was assisting Lanier in the bank’s vault. The bank denied the material allegations of the complaint and filed a motion to dismiss or for summary judgment, arguing Kennedy’s action is barred by the exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11. The trial court agreed and granted the bank’s motion on this basis. This appeal followed. Held: '

Workers’ compensation is the exclusive remedy for injuries arising out of and in the course of employment. OCGA § 34-9-11; Mur phy v. ARA Svcs., 164 Ga. App. 859, 860 (298 SE2d 528). However, an injury compensable under the Workers’ Compensation Act “shall not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee. . . .” OCGA § 34-9-1 (4).

Decided December 14, 1993.

Franklin, Taulbee, Rushing & Bunce, Elizabeth F. Bunce, for appellant.

Fletcher Farrington, Brown & Livingston, Charles H. Brown, Ford & Harrison, Patricia G. Griffith, Callaway, Neville & Brinson, William J. Neville, Jr., for appellee.

An injury caused by the wilful act of a third person is personal to the injured employee if the injury cannot fairly be traced to the employment as a contributing proximate cause and the injury comes from a hazard which the employee would have been equally exposed apart from the employment. Murphy v. ARA Svcs., 164 Ga. App. 859, 862, supra. In the case sub judice, there is no question that Kennedy (as other members of society) was equally exposed to the hazard of sexual assault apart from her employment at the bank. However, Kennedy’s employment at the bank exposed her to the presence of Lanier and to Lanier’s alleged deviant sexual propensities. Nonetheless, “[w]e refuse to say that the risk of. . . physical abuse of a sexual nature alleged by [Kennedy] belongs to or is in any way connected with what [Kennedy] had to do in fulfilling her responsibilities of employment. . . .” Murphy v. ARA Svcs., 164 Ga. App. 859, 862, supra. Consequently, Kennedy’s claims against the bank are not covered by Workers’ Compensation and the trial court erred in granting the bank’s motion to dismiss or for summary judgment based on the exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11. See Lindsey v. Winn Dixie Stores, 186 Ga. App. 867 (368 SE2d 813).

Judgment reversed.

Johnson and Blackburn, JJ., concur.

       Christy Calhoun is a party to the complaint, joining Kennedy in an action against William L. Lanier in his individual capacity for alleged sexual assault. These claims remain pending in the trial court.