text:
    A89A1723.
    BRIDGES v. CLARKE.
    (388 SE2d 760)
   McMurray, Presiding Judge.

Plaintiff Anthony Bridges brought suit against defendant H. A. Clarke, d/b/a Clarke’s Foreign Auto Specialists, seeking the return of a 1977 Peugeot automobile, actual damages and punitive damages. Defendant answered and counterclaimed, seeking damages for the repair of the automobile and storage charges.

The case was tried by the court sitting without a jury. Upon the conclusion of the trial, the trial court entered the following findings of fact and conclusions of law: “Plaintiff had the Defendant ‘pick up’ his 1977 Peugeot automobile from a repairman to make certain repairs to it caused by someone’s having placed the car battery in the car backwards. This happened sometime during the month of January, 1987. Plaintiff paid Defendant $250 and $200, leaving a balance of $284 for the work which was completed sometime in February, 1987. No other payment was made or tendered by Plaintiff to Defendant. After considering the facts, I find that the Defendant is entitled to 30 days rental at $10.00 per day, plus $284 for the balance repair to Plaintiff’s vehicle. Judgment is rendered in favor of Defendant against Plaintiff in the amount of $564.00, plus interest at 12% per annum.” Plaintiff appealed. Held:

1. Although the amount of the judgment is less than $2,500, we have jurisdiction to entertain this direct appeal because defendantappellee prevailed on the main claim. See Honester v. Tinsley, 183 Ga. App. 146, 147 (1) (358 SE2d 295).

2. Plaintiff contends the trial court was in error when it found no payments were made or tendered to defendant after the $250 and $200 payments were made. Plaintiff is correct. The evidence shows that plaintiff tendered a payment of $284 to defendant in June 1987 and that plaintiff’s attorney tendered that amount to defendant in July 1987. These facts, however, do not change the outcome of this case for the simple reason that the trial court’s judgment is consistent with these facts. See Division 3. Accordingly, the trial court’s findings, although erroneous, do not constitute harmful error.

3. The trial court did not err in awarding defendant storage charges even though plaintiff did not expressly agree to pay such charges. “The right of a garage keeper to recover for the storage of a vehicle and incidental services generally depends on whether there is an agreement between the parties and the provisions thereof, or whether, under the particular circumstances, an agreement to pay for storage should be implied. Thus, a garage proprietor with whom an automobile had originally been left for repairs and afterward for storage is entitled to a reasonable charge for storage of the car up to the time that the owner demanded possession of it. However, no charge for storage is implied during the period of time the automobile is undergoing repairs; nor is the garageman, who retains possession of the repaired vehicle in exercise of his right to claim a lien thereon, entitled to the reasonable value of the storage thereof during the time he so keeps it in his possession. . . .” 61A CJS, Motor Vehicles, § 725. Defendant completed repairing the automobile in February 1987. Thus, beginning at that time, defendant was entitled to a reasonable charge for storage. 61A CJS, Motor Vehicles, § 725, supra. According to defendant, he began charging plaintiff for storage commencing April 1, 1987, and he gratuitously cut off the accrual of such charges in August 1987 (because the storage charges began to exceed the value of the automobile). As noted in Division 2, it was not until June 1987 that plaintiff tendered defendant the balance due for repairs. Inasmuch as the trial court only awarded defendant storage fees for 30 days, the judgment was well within the range of the evidence. At the very least, defendant was entitled to storage charges until such time as plaintiff tendered the balance due for repairs to the automobile. See 61A CJS, Motor Vehicles, § 725, supra.

Judgment affirmed.

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

Decided November 27, 1989.

Albert R. Sacks, for appellant.

Divida Gude, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A1946.
    HOUSTON v. GEORGIA NORTHEASTERN RAILROAD COMPANY, INC.
    (388 SE2d 762)
   McMurray, Presiding Judge.

Plaintiff Patricia Houston, a/k/a Patricia Houston Post, brought this action against Georgia Northeastern Railroad Company, Inc., seeking damages for the wrongful death of William Rex Post. Following discovery, defendant moved for summary judgment. The motion was granted and plaintiff appealed.

Viewing the evidence in favor of plaintiff, the party opposing the summary judgment motion, we find the following: On January 5, 1988, Jeff Knowles and Donnie Plumley were driving a train which was owned and operated by defendant. Knowles, the engineer, and Plumley, the brakeman, were defendant’s employees.

At about 3:30 p.m., Knowles saw the decedent walking (with the assistance of a cane) near the train tracks. Knowles sounded the horn and rang the bell and the decedent moved aside. Approximately one hour later, Knowles again saw the decedent. This time, however, the decedent was not so near the tracks as to warrant the sounding of the horn or the ringing of the bell. Two hours later, at about 6:30 p.m., Plumley saw a dark figure lying on the tracks. The brakes were applied immediately but it was too late to prevent the train from running over the decedent. An autopsy of the decedent revealed a “blood alcohol level of .33% grams.”

At the time of the accident, Knowles and Plumley were keeping a lookout. The train was going approximately 15 miles per hour and the lights were on. The accident occurred more than 50 feet from any railroad grade crossing. Held:

“In Ashworth v. Southern Ry. Co., 116 Ga. 635 (43 S.E. 36, 59 L.R.A. 592), it was held that ‘[t]he only duty which a railroad company owes in this State to a trespasser on or about its property is not to injure him wantonly or wilfully; but this rule does not relieve the company, under all circumstances, from anticipating the presence of a trespasser upon its property and from taking proper precautions to prevent injury to him.’ ” Central of Ga. R. Co. v. Sharpe, 83 Ga. App. 12,18 (2), 18 (62 SE2d 427). In the case sub judice, the evidence demonstrates that defendant’s employees proceeded with caution as they made their way down the tracks. The train was going a mere 15 miles per hour and the lights were on. Defendant’s employees were keeping a lookout and the brakes were applied as soon as the decedent was spotted. Accordingly, we find no evidence demonstrating that defendant failed to take proper precautions to prevent injury to the decedent.

Decided November 27, 1989

Jack M. Smith, Paul D. Horton, for appellant.

Alston & Bird, Jack H. Senterfitt, Donna P. Bergeson, for appellee.

Relying upon OCGA § 46-8-292, plaintiff contends a genuine issue of material fact remains with respect to defendant’s negligence vel non. Pursuant to that Code section, a rebuttable presumption of negligence arises whenever a person is injured on a railroad track by the running of locomotives or cars of railroad companies. The presumption disappears, however, “when the railroad company introduces evidence showing the exercise of reasonable care and skill, that is, ordinary care, by its employees in the operation of the train at the time and place in question. [Cit.]” Gay v. Sylvania Central R. Co., 79 Ga. App. 362, 368 (4) (53 SE2d 713). In view of defendant’s showing of ordinary care, it was up to plaintiff to show by the evidence that there remains a genuine issue for trial. OCGA § 9-11-56 (e). Moreover, it was incumbent upon plaintiff to make this showing without any aid from OCGA § 46-8-292. Macon, Dublin &c. R. Co. v. Stephens, 66 Ga. App. 636, 639 (19 SE2d 32). This plaintiff failed to do.

The trial court did not err in granting defendant’s motion for summary judgment.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A2082.
    REEDMAN v. THE STATE.
    (388 SE2d 763)
   Banke, Presiding Judge.

Reedman brings this appeal from his conviction of possession of cocaine with intent to distribute.

The state’s evidence established that the appellant had approached two undercover Atlanta police detectives at approximately 1:30 a.m. on a Sunday morning and asked them if they wanted to purchase some “rock.” The officers replied affirmatively and followed the appellant approximately 50 feet to a store front, where an associate, who was tried with the appellant, was waiting. The appellant told his associate “what the men wanted,” and the associate in turn produced two plastic bags containing “rock cocaine,” which he then sold to one of the detectives for $30. While this transaction was taking place, the appellant stood approximately three feet away, serving as a lookout. The detectives then announced that they were police officers and arrested the two men. Held:

1. The appellant, who represented himself at trial and continues to do so on appeal, complains that the trial court’s denial of his pretrial motion for bond prevented him from adequately preparing his case for trial. Following his arrest, the appellant made application for appointment of counsel, and the Fulton County Public Defender was appointed to represent him. Subsequently, however, the appellant expressed a desire to represent himself, whereupon the public defender was appointed to assist him as co-counsel. Later still, the Supreme Court rendered its holding in Seagraves v. State, 259 Ga. 36, 39 (376 SE2d 670) (1989), that “a layperson does not have the right to represent himself and also be represented by an attorney. ...” Based on this decision, the trial court advised the appellant that he would have to choose between representing himself and being represented by the public defender. The court strongly advised the appellant to choose the latter option, but he refused and proceeded to trial pro se.

In Kesler v. State, 249 Ga. 462 (3), 468 (291 SE2d 497) (1982), the Supreme Court rejected the argument that the right to effective assistance of counsel entitles a defendant to bail “in order to personally assist his counsel.” Clearly, a defendant’s entitlement to bail does not increase because he makes an election to represent himself. Accordingly, the court’s denial of bail in this case affords no basis for reversal of the appellant’s conviction.

2. The appellant contends that the trial court erred in sustaining the state’s objections to two questions which he posed to the prospective jurors during voir dire. However, the transcript filed with this court does not include the voir dire proceedings. “Absent a transcript, this court can only presume that this portion of the trial was conducted in a regular and proper manner. [Cit.] When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allegedly erroneous matter. [Cit.]” Mindock v. State, 187 Ga. App. 508 (370 SE2d 670) (1988). Under the circumstances, this enumeration of error presents nothing for review.

3. The appellant contends that he was not furnished a copy of the indictment and list of witnesses within a sufficient period before trial to enable him to prepare his defense; however, the record reveals that the state fully complied with the requirements of OCGA § 17-7-110. Moreover, “ ‘[n]o showing [has] been made as to how additional time would have benefited appellant or how lack of more time harmed him.’ [Cit.]” Donnelly v. State, 166 Ga. App. 694 (306 SE2d 15) (1983). Accordingly, this enumeration of error also establishes no ground for reversal.

Decided November 27, 1989.

Ace Reedman, pro se.

Lewis R. Slaton, District Attorney, Richard E. Hicks, William Akins, Joseph J. Drolet, Rebecca A. Keel, Assistant District Attorneys, for appellee.

4. The appellant contends that the trial court erred in refusing to grant his pre-trial motion to sever the trial of his case from that of his co-defendant. “[T]he burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. [Cit.] He must make a clear showing of prejudice and a consequent denial of due process. [Cits.]” Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). No such showing has been made in the present case. Accordingly, no abuse of discretion by the trial court has been established.

5. The trial court did not err in refusing to give the appellant’s requested jury charges, inasmuch as the issues addressed therein were adequately covered by the charges given. See Smith v. State, 189 Ga. App. 244, 246 (375 SE2d 496) (1988).

6. The evidence was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense of possession of cocaine with the intent to distribute. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

7. We have examined the appellant’s remaining enumerations of error and have determined that they establish no ground for reversal.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Benham, Judge.

text:
    A89A0887.
    CALIFORNIA FEDERAL SAVINGS & LOAN ASSOCIATION v. DAY.
    (388 SE2d 727)
   Benham, Judge.

After a magistrate court issued to appellant a writ of possession for premises occupied by appellee, appellee appealed to the superior court. We granted appellant’s application for interlocutory review of the superior court’s denial of its motion for partial summary judgment.

In its order, the trial court found that appellee had failed to file a timely response to appellant’s request for admissions and concluded that the admissions were therefore deemed admitted by appellee. See OCGA § 9-11-36 (a) (2). Appellee thereby admitted that he had executed a deed to secure debt to appellant’s predecessor; that he had defaulted on the note secured by the deed to secure debt; that notice of foreclosure had been properly published; that appellant had been the high bidder at the foreclosure sale; that he had received a letter from appellant’s attorney demanding possession; that a deed under power of sale to appellant from appellee through his appointed agent had been recorded; and that appellee had paid no rent to appellant since he had gone into default.

Decided November 13, 1989

Rehearing denied November 28, 1989

Moore & Chambliss, Keith F. Allen, Alston & Bird, Linda K. Disantis, William H. Hughes, Jr., for appellant.

Griner & Alderman, Elsie H. Griner, for appellee.

Appellee, by remaining in possession of the premises after a lawful foreclosure of his deed to secure debt, became a tenant at sufferance and subject to summary dispossession by appellant, the purchaser at the foreclosure sale. West v. Veterans Admin., 182 Ga. App. 767 (1) (357 SE2d 121) (1987). In order to obtain possession of the premises, appellant, as landlord, had to demand possession from appellee and, if refused, make an affidavit under oath in any court with subject matter jurisdiction (OCGA § 44-7-50); have the sheriff serve appellee with appellant’s affidavit and the summons issued pursuant to appellant’s affidavit (OCGA § 44-7-51 (a)); and submit to a trial of the issues upon appellee’s response (OCGA § 44-7-53 (b)). The record and the admitted requests for admission establish the necessary landlord-tenant relationship and the fulfillment of the statutory prerequisites for a writ of possession. Appellee’s appellate concern that the magistrate court did not have subject matter jurisdiction of the dispossessory action once appellee filed a response thereto, thereby rendering void the writ of possession issued by that court, is without merit. The magistrate court had jurisdiction and power over “[t]he issuance of summons, trial of issues, and issuance of writs and judgments in dispossessory proceedings. . . .” OCGA § 15-10-2 (6). By filing a response to appellant’s affidavit in the magistrate court, appellee ensured “a trial of the issues ... in accordance with the procedures prescribed for [the magistrate court]. ...” OCGA § 44-7-53 (b). Thus, the magistrate court had jurisdiction to conduct such a trial. See also OCGA § 15-10-2 (6). Rucker v. Fuller, 247 Ga. 423 (276 SE2d 600) (1981), relied on by appellee, is inapposite inasmuch as it involves a dispossessory proceeding filed in a justice of the peace court which had no statutory jurisdictional basis to hear a contested dispossessory case.

Judgment reversed.

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


author: Birdsong, Judge.

text:
    A89A1318.
    JOHNSON v. WADDELL.
    (388 SE2d 723)
   Birdsong, Judge.

A. E. Johnson d/b/a Johnson Pools appeals the judgment awarded in a civil action against it of $3,360 general damages; $3,300 punitive damages; and $2,660.67 attorney fees and court costs.

The chief complaint on appeal is that because the trial court had granted a directed verdict on the appellee’s “fraud count” leaving only a claim of breach of contract, appellee was not entitled to punitive (“aggravated”) damages, and the trial court erred in charging the jury so as to allow such damages. See OCGA § 13-6-10. Appellee Waddell announces in reply that notwithstanding the directed verdict against him on “the fraud count,” he had in fact proven the elements of fraud or tort which would, and did, support the punitive damages award. Held:

1. Appellee was not entitled to an award of punitive damages, for the only ground which would have supported it, to wit, the fraud alleged, was ousted from the case by the trial court. All that remained in the case was the breach of warranty (contract) issue.

By statutory mandate in this state, “exemplary damages shall never be allowed in cases arising on contracts [unless otherwise provided by law].” OCGA § 13-6-10. See Horne v. Drachman, 247 Ga. 802 (280 SE2d 338). Appellee cannot contend the damages are supportable because he proved fraud anyway, for the trial court had already directed a verdict against him and in favor of appellant, thus saying there was nothing to be proved on a question of fraud. The directed verdict, unappealed, disposed of any issue there might have been as to fraud. No basis exists in the case to support punitive damages, for no basis exists for appellee to argue he proved fraud because the trial court, by directed verdict unappealed, has ruled there is no such evidence in the case. It was error for the trial court to charge the jury it could award “aggravated” damages, which are nothing more than punitive damages, because the action extant was based only on contract. Appellee has not proposed any basis upon which such damages might be “otherwise provided by law” (§ 13-6-10). The award of punitive damages cannot be sustained and must be stricken.

2. Appellant contends that when the trial judge announced that the fraud issue was not sufficiently pled or proved in the case and said: “I do not believe that the count on fraud is any longer in the case” (emphasis supplied), this ruling disposed of the appellee Wad-dell’s claim for “bad faith” because that claim physically reposed in paragraph 14 of “COUNT II (FRAUD IN THE INDUCEMENT),” as appellee himself had phrased it in his complaint. Consequently, says appellant, without a claim extant for bad faith, the award of attorney fees and costs cannot stand.

Decided November 9, 1989

Rehearing denied November 28, 1989.

Blount, Renehan & Ellis, Edward G. Renehan, for appellant.

This construction of procedural events is without merit. Paragraph 14 of the complaint asserts that “[defendant, having acted in bad faith during the course of the transaction described herein, should be required to pay the reasonable attorney’s fees of the [p]laintiff in the amount shown at the time of the trial.” (Emphasis supplied.) This is clearly a claim for bad faith in the performance of the contract, under OCGA § 13-6-11; see Cade v. Roberts, 175 Ga. App. 800 (334 SE2d 379). This issue is the province of the jury, and the evidence in the case supports the award. See Sanders v. Hughes, 183 Ga. App. 601 (359 SE2d 396); Harrell v. Gomez, 174 Ga. App. 8 (329 SE2d 302). It was not necessary that plaintiff Waddell prove any other elements of § 13-6-11, e.g., stubborn litigiousness, to gain the award (National Svc. Indus. v. Hartford Accident &c. Co., 661 F2d 458 (5th Cir. 1981)).

Although physically the paragraph no. 14 may have appeared to be part of “COUNT II (FRAUD IN THE INDUCEMENT),” its language proves clearly that it was not. It is in fact the last paragraph in the complaint and was not based on fraud, and did not seek attorney fees on account of fraud, but on account of defendant’s “bad faith during the course of the transaction,” which is clearly a matter of contract performance. See Glen Restaurant v. West, 173 Ga. App. 204 (325 SE2d 781).

If appellant was of the misunderstanding that when the trial court threw out the “fraud count,” it also disposed of the allegation of bad faith in the performance of the transaction (contract), the trial court corrected this misimpression when it announced that it had not disposed of the bad faith issue and would allow evidence of attorney fees and so charge the jury. Appellant surely had no vested right in his misunderstanding and no harm or prejudice accrued to him because of it. Appellant simply seeks to take advantage here of his own baseless and rectified misunderstanding, but it is not entitled to have the attorney fee award reversed because of it.

Accordingly, with this ruling, we reverse the judgment insofar as it allows an award of punitive damages, and we affirm the award of general damages and of attorney fees.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Benham, J., concur.

Smith & Welch, Benjamin W. Studdard III, for appellee.


author: Pope, Judge.

text:
    A89A1486.
    THE STATE v. SCHWALL.
    (388 SE2d 705)
   Pope, Judge.

Defendant James Lamar Schwall, Jr., was indicted for violation of the Georgia Controlled Substances Act on September 7, 1988. An order of the trial court recites that defendant’s counsel was appointed to represent him on September 14, 1988. Said counsel filed motions in the case showing him to be counsel of record on January 13, 1989. Although defendant was arraigned on January 18, 1989, his counsel asserts that he received no notice of the arraignment from the clerk of the court but appeared at the arraignment hearing only because his client notified him by telephone on the evening before the hearing. Counsel filed a motion to suppress certain evidence on January 23. The State presented no evidence or argument at the hearing on the motion to suppress but relied solely on its motion to dismiss on the ground the motion to suppress was untimely filed. Defendant’s motion to suppress was granted and the State appeals.

Rule 31.1 of the Uniform Superior Court Rules requires all motions in a criminal case to be filed at or before the time of arraignment. Under a strict application of this rule defendant’s motion to suppress would be untimely and therefore his objection to the evidence waived. However, the Uniform Rules also require that notice of the date, time and place of arraignment be delivered to all attorneys of record. Uniform Superior Court Rule 30.1. The lower court judge found that defendant’s counsel in this case was not properly notified of the arraignment date even though he had previously been appointed to serve as defendant’s counsel and had previously filed pleadings in the case.

Prior to adoption of the uniform trial court rules, no time requirement was placed on defendant’s right to bring a motion to suppress except for the requirement “that it shall be filed before trial as the ‘purpose is to avoid the interruption of the trial for the purpose of investigating the collateral issue of the legality of the means by which the evidence was obtained.’ [Cits.]” Stansifer v. State, 166 Ga. App. 785, 788 (305 SE2d 481) (1983). Although the motion to suppress in this case was filed after the date of arraignment, it was filed before trial and did not interrupt or delay the trial of the case. Since defendant’s attorney had no prior notice of the arraignment, to dismiss the motion to suppress as untimely would have been manifestly unjust. See Collier v. State, 171 Ga. App. 214 (319 SE2d 51) (1984) (where this court held the defendant should have been allowed to bring a motion to suppress evidence filed on the morning of trial because the record showed that defendant’s attorney had never made a court appearance on behalf of the defendant prior to the day of the trial). The facts of this case are distinguishable from those in State v. Grandison, 192 Ga. App. 473 (385 SE2d 139) (1989), in which the majority of the court ruled to reverse the granting of an untimely motion to suppress evidence, because in that case defendant’s counsel had notice of the arraignment hearing and therefore had the opportunity to apply for a written extension of time to file the motion, pursuant to Rule 31.1, but failed to do so.

Decided October 26, 1989

Rehearing denied November 28, 1989

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellant.

Robert H. Sutiles, for appellee.

On a motion to suppress evidence, the burden of proving the search and seizure were lawful is on the State. OCGA § 17-5-30 (b). Here, the State presented no evidence at the hearing and relied only upon its motion to dismiss. The trial court did not err in granting defendant’s motion to suppress.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Deen, Presiding Judge.

text:
    A89A2030.
    CUMMINGS v. STANFORD.
    (388 SE2d 729)
   Deen, Presiding Judge.

The appellee, Marjorie Stanford, filed a petition with the probate court to be appointed guardian over the property of the appellant, Mary Cummings, her mother. The probate court denied the petition, but the superior court reversed and granted it. This appeal followed.

At the time of the hearing, the appellant was 65 and the mother of four grown children. Her husband died in May 1988; prior to his death, he had been responsible for all the household finances. The exact extent of the estate he left could not be ascertained, but it was enough to accrue over $10,000 in interest in 1988. Since the death of her husband, the appellant had spent considerable sums of money. Some of the expenditures included $35,000 for another house, and a five-week vacation to Florida with two of her sons. (She moved into the new house, and maintained her former residence and another house she had inherited from her mother approximately three years ago; although this latter residence had been vacant the entire time since her mother’s death, she continued all the utility and cable television services for it.)

Decided November 13, 1989

Rehearing denied November 28, 1989

Milton F. Gardner, Jr., for appellant.

Donald W. Huskins, for appellee.

The appellant was unable to account for several thousands of dollars she had spent, and was unaware of the extent of the estate remaining. The two sons who accompanied her on the Florida vacation, at the least, were not hesitant to exploit the appellant’s resources; one of these sons lived with the appellant, and had suggested that the appellant buy the third house. A clinical psychologist testified that he did not consider the appellant to be incompetent; he admitted, however, that he did not discuss with her in detail the extent and management of the appellant’s financial resources. Held:

1. The trial court found that due to advanced age, and perhaps mental disability, the appellant was incapable of managing her financial resources, which would be wasted or dissipated in the absence of proper management. See OCGA § 29-5-1 (2). Clear and convincing evidence supported that finding, and the trial court thus did not err in appointing the appellee as guardian over the property of the appellant.

2. We reject the appellant’s contention that OCGA § 29-5-6 (a) (3), which requires a guardianship petition to be sworn to by at least two petitioners, results in a similar requirement that a petitioner present two witnesses in support of the petition at the actual trial.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A2223.
    THE STATE v. LIPSKY.
    (390 SE2d 677)
   Deen, Presiding Judge.

The facts in this case are set forth in State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989). After reversal by this court, Lipsky renewed his motion for discharge and acquittal. At the hearing on the motion, the trial court found that the case was received and filed on February 8, 1988. It contained the uniform traffic citation, and the trial court then granted appellee’s motion to dismiss. We find no error and affirm.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided November 16, 1989

Rehearing denied November 28, 1989

Gerald N. Blaney, Solicitor, David M. Fuller, Assistant Solicitor, for appellant.

John B. Tucker, for appellee.


text:
    A89A2332.
    BOUCHARD et al. v. FOWLER.
    (388 SE2d 874)
   Deen, Presiding Judge.

Martha Fowler brought a medical malpractice suit against Dr. James L. Bouchard, P.C., and Dr. Bouchard, individually. The defendant filed a Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), counterclaim. The defendants moved for summary judgment prior to trial and the motion was denied. At trial, they moved for a directed verdict at the close of the evidence and it was also denied. The jury returned a verdict in the defendants’ favor. The jury then reconvened and heard evidence on defendants’ counterclaim, returned the requested verdict of $1.00, and this verdict was made the judgment of the court. Defendants later filed a timely motion for an award of litigation costs and attorney’s fees for frivolous actions pursuant to the provisions of OCGA § 9-15-14. After a hearing on the motion, the trial court entered an order denying the motion and this appeal follows. Held:

The decision in Yost v. Torok, 256 Ga. 92, 95, supra, specifically states that OCGA § 9-15-14 will govern the award for attorney’s fees and expenses of litigation for abusive conduct. OCGA § 9-15-14 (a) and (b) set forth the guidelines for the award of attorney’s fees and expenses of litigation. Subsection (a) provides that they shall be imposed where “there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” Subsection (b) is couched in discretionary language and provides that the court may assess attorney’s fees and expenses of litigation if the action brought or defended “lacked substantial justification or . . . the action, or any part thereof, was interposed for delay or harassment,” etc. Under subsection (f), the amount of the award “shall be determined by the court without a jury.” Appellants argue that the jury award on the Yost counterclaim mandates an award for the expenses of litigation and attorney’s fees. We disagree.

In Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613, 614 (379 SE2d 555) (1989), this court held that by denying the appellants’ motions for summary judgment and for directed verdict, the trial court was finding that material issues of fact were presented for jury resolution. These rulings were therefore sufficient “to constitute a ‘binding determination’ that their civil action against appellants did not lack substantial justification so as to render it frivolous, groundless, or vexatious.” As the trial court in the instant case denied appellants’ motions for summary judgment and for a directed verdict, it could not award the damages appellants sought. Biosphere Indus. v. Oxford Chemicals, supra.

Decided November 15, 1989

Rehearing denied November 28, 1989

Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, Stephanie L. DeBerry, for appellants.

Peters, Burns & Millender, Allen F. Townsend, James D. Burns, for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Carley, Chief Judge.

text:
    A89A0927.
    NATIONAL INDEMNITY COMPANY v. TATUM.
    (388 SE2d 896)
   Carley, Chief Judge.

On May 1, 1986, appellee-plaintiff was injured as the result of a collision between his vehicle and a truck insured by appellant-defendant. Appellee filed suit against the driver and owner of the truck and, asserting the right to bring a direct pre-judgment action pursuant to OCGA § 46-7-12, he joined appellant as a defendant in the suit. Appellant subsequently moved for summary judgment. In support of its motion, appellant produced uncontradicted evidence that the truck it insured was engaged exclusively in the transportation of potting soil. Based upon this uncontradicted evidence, appellant urged that the truck was not a “motor common carrier” and that OCGA § 46-7-12 (e) did not, therefore, authorize its joinder as a defendant in appellee’s suit against its insured. The trial court denied appellant’s motion but certified its order for immediate review. Appellant’s application for an interlocutory appeal from the trial court’s order was granted.

OCGA § 46-7-12 (e) provides: “It shall be permissible under this article for any person having a cause of action arising under this article in tort or contract to join in the same action the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action, whether arising in tort or contract.” (Emphasis supplied.) The “article” of the Code to which OCGA § 46-7-12 (e) refers is entitled “Motor Common Carriers.” Under the provisions of that article, “motor common carriers” are made subject to general regulation by the Public Service Commission (Commission). OCGA § 46-7-2. To that end, “motor common carriers” must obtain a certificate of public convenience and necessity (certificate) from the Commission. OCGA § 46-7-3. Such a certificate shall not be issued unless a “motor common carrier” has filed an approved bond or policy of insurance with the Commission or, in the alternative, has secured the Commission’s approval to act as a self-insurer. OCGA § 46-7-12 (a), (b), (c), and (d).

OCGA § 46-1-1 (7) (C) (xi), formerly codified as OCGA § 46-1-1 (12) (C) (xi), provides, in relevant part, that, “[e]xcept as otherwise provided in this subparagraph, the term ‘motor common carrier . . .’ shall not include: Motor vehicles engaged [exclusively] in the transportation of . . . potting soil . . . except that any operator of such a vehicle is required to register the exempt operation with the [Commission, register and identify any of its vehicles, and become subject to the [CJommission’s liability insurance . . . rules.” (Emphasis supplied.) Thus, the owner of the truck that appellant insured was not a “motor common carrier” otherwise required to secure a certificate after filing an approved policy of insurance with the Commission. Pursuant to OCGA § 46-1-1 (7) (C) (xi), appellant’s insured was required only to register his exempt operation and vehicle with the Commission and to become subject to the Commission’s administrative rules regarding liability insurance. Therefore, the contention is that appellee’s collision with the insured truck gave rise to no cause of action under the “Motor Common Carrier” article of the Code, and that appellant accordingly is not an insurer of a “motor common carrier” so as to be subject to the direct pre-judgment action authorized by OCGA § 46-7-12 (e).

There is a fundamental and decisive distinction between the unequivocal creation of a statutory direct pre-judgment cause of action against the insurer issuing an approved policy of insurance to a “motor common carrier” and a mere statutory directive that one who is not otherwise a “motor common carrier” shall nevertheless be subject to the Commission’s administrative rules on liability insurance. A direct pre-judgment cause of action against an insurer is created by the statutory provisions of OCGA § 46-7-12, not by the Commission’s administrative rules regarding liability insurance. OCGA § 46-7-12 contemplates the existence of a cause of action against a “motor common carrier.” That appellant’s otherwise exempt insured was merely made subject to the Commission’s rules on liability insurance does not equate to the statutory status of a “motor common carrier.” The obvious legislative intent of OCGA § 46-1-1 (7) (C) (xi) is to exempt appellant’s insured from the definition of “motor common carrier” and to impose certain requirements upon appellant’s insured in his non-“motor common carrier” capacity. It was not the intent of that statute to confer “motor common carrier” status so as to subject appellant to the direct pre-judgment action authorized by OCGA § 46-7-12.

Former OCGA § 46-7-16 (a) (3) also provided, in relevant part, that “[e]xcept as otherwise provided in this Code section, before . . . any motor common carrier engaged in exempt commodity intrastate commerce as provided for in subparagraph (C) of paragraph [(7)] of Code Section 46-1-1 shall operate any motor vehicle on or over any public highway of this state, it shall first: . . . “Give the bond or indemnity insurance prescribed by this article, omitting the protection in respect to their own passengers and cargoes.” (Emphasis supplied.) Ga. L. 1986, pp. 1283, 1301-1302. Although this former Code section was subsequently amended in 1988 so as to repeal its applicability to otherwise exempt carriers, it was in effect at the time of the occurrence of the collision that is at issue in the present case and, thus, must be considered in connection with this appeal. Again, however, there is a fundamental and decisive distinction between the unequivocal creation of a statutory direct pre-judgment cause of action against the insurer issuing an approved policy of insurance to a “motor common carrier” and a mere statutory directive that one who is not otherwise to be considered a “motor common carrier” shall nevertheless give the same bond or indemnity insurance that is prescribed in the “motor common carrier” article. As noted previously, the direct prejudgment cause of action against an insurer that is created by OCGA § 46-7-12 contemplates the existence of a cause of action against a “motor common carrier.” That appellant’s otherwise exempt insured was merely required to give the bond or indemnity insurance that is required of a “motor common carrier” does not equate to the statutory status of a “motor common carrier.” The obvious legislative intent of former OCGA § 46-7-16 (a) (3) was merely to impose the requirement of giving bond or indemnity insurance upon appellant’s insured in his non-“motor common carrier” capacity. That statute did not confer “motor common carrier” status upon appellant’s insured so as to subject appellant to the direct pre-judgment action authorized by OCGA § 46-7-12. The decision in Westport Trucking Co. v. Griffin, 254 Ga. 361 (329 SE2d 487) (1985) is not authority to the contrary. That case did not concern a direct pre-judgment action against the insurer of a carrier otherwise exempt from “motor common carrier” status.

OCGA § 46-7-12 is in derogation of the common law and must be strictly construed. See Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 509 (1) (359 SE2d 351) (1987). If the legislature had intended that a direct pre-judgment cause of action lie against the insurers of those carriers otherwise exempt from “motor common carrier” status, it could have enacted legislation to that end. Instead, it exempted certain carriers from the definition of “motor common carrier,” and then imposed certain requirements upon those carriers in their non-“motor common carrier” capacity. It is undisputed that appellant’s insured is exempt from “motor common carrier” status. It follows that appellee has no cause of action arising under the “Motor Common Carrier” article and that appellant is not subject to a direct pre-judgment action pursuant to OCGA § 46-7-12. The trial court erroneously denied appellant’s motion for summary judgment.

Decided November 28, 1989.

Dennis, Corry, Porter, Thornton & McGlamry, Robert E. Corry, Jr., R. Clay Porter, Grant B. Smith, for appellant.

Lokey & Bowden, Malcolm Smith, Gilbert & Montlick, Fred A. Gilbert, for appellee.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A89A1098.
    HOOD v. THE STATE.
    (389 SE2d 264)
   Beasley, Judge.

Hood appeals his conviction for vehicular homicide in the second degree (OCGA § 40-6-393 (b)), for failure to drive in accordance with OCGA § 40-6-48 (1).

The victim’s station wagon ran out of gas at the 1-85 and 1-285 junction. He parked it in a neutral zone, a triangle defined by solid white lines at the point where the entrance ramp from 1-285 merged with 1-85. He was standing at the left rear of his station wagon, with emergency lights flashing, when Hood, driving a pickup, came off the 1-285 ramp attempting to merge onto 1-85. He struck the left rear of the station wagon with the right front of his truck, crushing the victim between them. The victim then fell and was run over by a Mustang following Hood. The Mustang did not stop, travelling over 400 feet before the victim’s body caused the car to stop.

Hood testified that a van in front of him swerved and revealed the station wagon, which Hood said was partially in the lane, and the victim. Hood said he locked his brakes, then regained control and attempted to go by the station wagon to the left, through the neutral zone. He said he may have clipped the victim but when he last saw him, he was running.

Eason, a former DeKalb police officer and at trial time a private accident reconstruction specialist, gave his opinion that the victim was compressed between the two vehicles and was horizontal when the Mustang ran over him. Photos taken at the scene reveal blood and body tissue on the hood and windshield of the truck and extensive damage to its right front quarter-panel. Shredded clothing from the victim was embedded in the crushed left quarter-panel of the station wagon.

1. Defendant moved for directed verdict at the close of the State’s case, based on the failure of the State to show that defendant “caused the death.” At the close of all evidence, defendant renewed his motion, contending that he could not be held “responsible for the superseding intervening acts of third parties in the operation of his motor vehicle.”

A directed verdict is appropriate only where there is no evidence to support a verdict to the contrary. OCGA § 17-9-1; Conger v. State, 250 Ga. 867, 870 (301 SE2d 878) (1983); Bradley v. State, 180 Ga. App. 386 (349 SE2d 263) (1986).

Because the State did not timely serve defendant with a copy of the medical examiner’s report, the doctor was unable to testify from his specific knowledge of the case and instead answered only hypothetical questions, some of which were premised on the photos of the wrecked vehicles. The doctor’s opinion was that it was “quite likely that this person within reasonable probability sustained injuries that could have resulted in death.” He was unable to say for certain that the injuries definitely did result in death.

This did not, however, mean that the question should be taken from the jury. Causation is a required element of vehicular homicide. It must be shown that the defendant’s illegal act, here crossing the neutral zone when it was unsafe to do so, was the cause of death. Davis v. State, 187 Ga. App. 517, 520 (3) (370 SE2d 779) (1988); Collins v. State, 172 Ga. App. 100, 102 (1) (321 SE2d 823) (1984).

The doctor’s answers to the hypothetical, the photographs, and Eason’s opinion as to how the accident occurred formed a sufficient basis upon which the jury could find, beyond a reasonable doubt, that defendant’s act caused the death. OCGA §§ 24-4-5; 16-1-5; Davis, supra at 521. The jury was not compelled by the evidence to accept defendant’s theory that the victim was still alive and not dying after he hit him and was killed instead by the Mustang. Denial of the directed verdict was not error. Davis, supra at 522.

Defendant’s argument that the fact that the Mustang hit the decedent required the trial court to hold as a matter of law that an intervening superseding criminal act was the proximate cause of the death is not supportable. Proximate cause has been used in vehicular homicide cases for many years. Davis, supra at 521; Johnson v. State, 170 Ga. App. 433, 434 (1) (317 SE2d 213) (1984). The concept of independent intervening causes which will break the chain of causation is one of the yardsticks used to measure proximate cause. Western Stone &c. Corp. v. Jones, 180 Ga. App. 79, 80 (348 SE2d 478) (1986); Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 115 (2 b) (372 SE2d 265) (1988), aff'd 259 Ga. 376 (382 SE2d 597) (1989). In cases of conflicting evidence, this question is one for the jury. Western, supra; Brandvain, supra.

2. Defendant contends that the court erred in allowing Eason to give his opinion concerning the “ultimate issue” in the trial, the cause of death.

Eason was a former police officer who had been trained in accident analysis and reconstruction and had worked numerous accidents both as patrolman and detective. He gave his background, experience and qualifications in this area and was tendered to the court as an expert. The court declined to rule, reserving such until a challenge was made. Thereafter, Eason was asked if he had an “opinion or final conclusion as to what was the cause of the accident.” He gave his factual findings concerning the chronology of the accident based on his examination of the scene and vehicles and concluded that defendant crossed the neutral zone, “collided with the stopped [station wagon] and death resulted.”

At this point defendant objected, on the basis that, as to the testimony concerning the death, “I don’t think that is a conclusion he is qualified to draw.” The court overruled that objection.

During cross-examination, Eason was asked if he knew the victim was dead when he was struck by the Mustang. He responded that he had an opinion based on his experience, but that he had no personal knowledge. On redirect, the State asked what that opinion was. Defendant objected that such an opinion would invade the province of the jury and was the ultimate opinion on the issue in the case. This objection was sustained.

Defendant enumerates the allowance of testimony of the ultimate issue and allowing Eason to state a “legal conclusion to the jury over objection.”

Eason was not permitted to give his opinion after the second objection, so defendant cannot complain in that regard. The first objection went not to the “ultimate issue” objection now raised, but only to the qualifications of Eason to give an opinion of when death occurred. This is the only issue we address.

The question of whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court. Dept. of Transp. v. McLaughlin, 163 Ga. App. 1, 5 (3) (292 SE2d 435) (1982). Eason had worked numerous accidents involving death, was trained in accident reconstruction, and gave factual bases for his conclusions. The court did not err as a matter of law in overruling the stated objection and thereby finding the witness qualified to give his opinion. Doughty v. State, 175 Ga. App. 317, 319 (2) (333 SE2d 402) (1985); see State v. Butler, 256 Ga. 448, 450 (2) (349 SE2d 684) (1986).

Decided November 28, 1989.

Hyatt Legal Services, Steven Harrell, for appellant.

Ralph T. Bowden, Solicitor, Judith C. Emken, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.

Also, the fact of death was not disputed and was proven by an emergency medical technician who found no life signs in the victim at the scene. The medical examiner gave his opinion that it was “reasonably probable” that the impact of a truck going 45 m.p.h. against a human body compressed against a stationary vehicle would cause death. Even if Eason’s opinion were an unsupported conclusion, there was other evidence to support it and therefore no harm has been shown. Doughty, supra. As to the doctrine of harmless error in criminal cases, see Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869) (1976).

3. Defendant alleges error in the court’s failure to charge, sua sponte, on independent intervening criminal acts.

Defendant filed 37 Requests to Charge, none of which contained this principle. At the conclusion of the charge, the court asked if defendant had objections and two were made, neither of which was the one now raised for the first time. Any such objection has been waived, Allen v. State, 177 Ga. App. 600, 603 (340 SE2d 246) (1986), inasmuch as failure to so charge was not error under OCGA § 5-5-24 (c). Billingsley v. State, 183 Ga. App. 850, 853 (5) (360 SE2d 451) (1987).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1224.
    BALLARD v. DENSON CONSTRUCTION COMPANY.
    (389 SE2d 17)
   Pope, Judge.

Appellant-plaintiff was a subcontractor of appellee-defendant on a job to construct a new ambulatory center for the Medical Center, Inc., in Columbus. The contract between the parties provided in Article X that defendant would pay plaintiff $135,546 for the job, to be paid in installments as the owner (The Medical Center) paid defendant. The provision further authorized defendant to withhold payment until plaintiff provided defendant with suitable evidence that plaintiff had paid in full for all labor, materials and supplies used on the job through the date of the payment sought.

Upon completion of the project, after the owner paid defendant, plaintiff sought final payment for his work. Defendant paid all but $7,803 which represented the amount claimed by Denvel Milam against plaintiff in a mechanic’s lien filed in superior court for work allegedly done by Milam on the hospital project.

Plaintiff then brought suit against defendant for the unpaid amount and additionally sought punitive damages and attorney fees. Defendant answered, denying the allegations, counterclaimed to inter-plead Milam and paid the amount in dispute into the registry of the court. Within two weeks of the time suit was filed, the lien expired by operation of law pursuant to OCGA § 44-14-362 (3) because Milam failed to commence an action within 12 months of the time the money was due. On motion by plaintiff, unopposed by defendant, the court allowed plaintiff to withdraw the funds. The court then granted defendant’s motion for summary judgment as to the main claim and on the claim for interpleader. Held:

We affirm. Plaintiff chose not to produce any evidence in opposition to defendant’s motion, taking the position that defendant’s motion failed to pierce the allegations of his complaint. We find that defendant’s motion did pierce the allegations.

Article VIII (a) of the contract between the parties reads in pertinent part: “Sub-contractor [plaintiff] shall turn said work over to Contractor [defendant] in good condition and free and clear of all claims, encumbrances or liens. . . .” Article X, as noted above, provides that defendant “may withhold payment of any estimate until Sub-contractor has furnished Contractor with suitable evidence that he has paid in full for all labor, materials and supplies used in the work through the date of the estimate.” On February 3, 1988, plaintiff signed an affidavit to receive payment. In Paragraph 3 he averred: “That there are no accounts unpaid to labor, material and equipment suppliers or any other persons owed by Affiant or his company that could result in any claim or lien against Denson Construction Company or the owner of the property. ...” In Paragraph 5, plaintiff averred that “Affiant acknowledges receipt of $137,657.00 which is the amount due under the terms of the above set forth contract. Said amount represents 94.6 percentage of the total amount due. $7,803.00 is being held pending clearing of mechanics lien by Denvel Milam.” Defendant filed the affidavit of its president, O. Earle Denson, with its motion for summary judgment. Paragraph 6 of the affidavit states: “Thomas L. Ballard was told by me at the time of the giving of the affidavit [mentioned above] that he would receive his final payment . . . when he had caused Denvel E. Milam, Jr. to release the lien.”

From this record, it is apparent that defendant is correct in asserting that plaintiff failed to fulfill a condition precedent in the contract before final payment was due. Article VIII required that the work be free of liens when it was turned over. Article X specifically authorized defendant to withhold payment until plaintiff provided defendant with “suitable” proof that everything was paid. Plaintiff’s own affidavit refutes his argument that he fulfilled this requirement because it recites that money is being withheld pending the clearing of the lien. Denson’s affidavit buttresses defendant’s position and establishes that plaintiff failed to provide defendant with proof that all money due subcontractors had been paid. Thus, the money allegedly due under the complaint did not become due until the lien was dissolved. The record is devoid of any evidence that defendant breached any duty toward plaintiff.

Decided November 28, 1989.

Vincent W. Roses, Jr., for appellant.

W. Donald Morgan, Jr., for appellee.

Defendant’s motion for sanctions pursuant to Court of Appeals Rule 26 (b) is denied.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1242.
    APAC-GEORGIA, INC. v. PADGETT.
    (388 SE2d 900)
   Beasley, Judge.

APAC appeals the judgment against it resulting from Padgett’s accident at one of APAC’s construction sites.

APAC had a contract with the Department of Transportation for widening and paving a portion of highway. The work required that one of the two lanes be closed at times. Padgett was driving a tractor trailer fully loaded with logs when he came over the crest of a hill going forty miles per hour. He was unable to stop when he saw the line of cars stopped for the construction. He steered his rig to the ditch and jumped, severely injuring his leg

He sued APAC, contending that its employees had negligently controlled the traffic, allowing it to back up beyond the site warning signs and to the crest of the hill where it was invisible to traffic topping the hill.

APAC answered, claiming it was not negligent and the accident was caused by plaintiff’s negligence.

On the morning of trial, APAC filed a Motion in Limine asserting that Padgett would attempt “to introduce evidence, make reference to, or to otherwise leave the jury with the impression that following the accident, the Defendant placed additional warning signs at a location further distant from the construction site, and/or performed additional safety measures.” The court, after hearing argument, sustained the Motion in Limine “until it [the evidence of corrective measures] comes within the exception carved out in [Brooks v. Cellin Manufacturing Co., 251 Ga. 395 (306 SE2d 657) (1983)].”

1. The first and second enumerations allege error in the court’s later allowing evidence of additional signs placed before the crest of the hill and denial of two motions for mistrial by APAC as a result.

A dévelopment of the evidence is necessary for evaluation of this issue.

Padgett called Mrs. Brown, who said there was no sign before or at the crest of the hill. Mrs. Brown’s car was stopped in the waiting line and was struck by a log falling off the truck. She testified that there was no flagman at the crest of the hill when she came over it. She was then asked if she saw one before she left the accident site, and she said:

“When we left, there was a flag person up there.
“Q. One had been put up there?
“A. Yes.”

No objection was made by APAC.

Padgett then called for cross-examination two APAC employees, branch manager Holly and Thompson, the paving supervisor and safety officer for this job. Both testified about the contractual requirement that APAC provide traffic control on the job and the incorporation by reference into the contract of the Manual on Uniform Traffic Control Devices. The contract also contained a “traffic control plan” which, along with the Manual, were the minimum requirements for traffic control, said Thompson and Holly.

Immediately after the questions regarding the Manual, Thompson was asked:

“Q. You could have put more than the minimum number of signs out if a situation called for it, couldn’t you?
“A. Yeah.
“Q. Have you ever done that?
“A. No sir.
“Q. Have you since?
“A. Afterwards, yes.”

APAC moved for mistrial, on the basis that Padgett had violated the court’s ruling on the Motion in Limine. The court excused the jury, had the court reporter read back the last couple of questions and answers, and denied a mistrial, stating that while counsel was “skating on very thin ice,” the question was ambiguous and did not necessarily refer to placing additional signs on this job after this accident, but to whether APAC had used more signs than the manual required on other jobs thereafter. The court inquired whether APAC wanted the jury given any instructions, which APAC declined.

“OCGA § [15-1-3] provides every court with the power to control the activities and processes in its cases. Trial courts are invested with wide discretion in the management of the business before them, and this discretion will not be interfered with on appeal unless manifestly abused. [Cit.] The trial court also has broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate court unless it appears there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right of fair trial. [Cit.]” Southern R. Co. v. Lawson, 256 Ga. 798, 802 (5) (353 SE2d 491) (1987).

Since evidence of post-accident remedial measures was already before the jury through Mrs. Brown’s testimony, to which no objection was made, the denial of the mistrial was not a manifest abuse of discretion. Even if denial were error, it would be harmless in light of our holding on the admission of evidence set out below.

Padgett then called Powell, the Department of Transportation engineer for the project, who also said the contract traffic plan and the Manual were the minimum requirements, and that if additional signing were necessary for safety on the job, the contractor was obligated to supply it.

On cross-examination by APAC, Powell was asked if he inspected the traffic control devices each morning, including the morning of the accident. He answered that he tried to do so each morning but that he did not recall doing so before the accident; rather, “after the accident in question I did look at the signing of the job at that time.” He was repeatedly asked by APAC about the sign which he found after the accident at the crest of the hill.

Finally, APAC asked: “Based on your experience and your position with the Department of Transportation at that job site, you were satisfied as to the placement of the warning signs for that job, weren’t you?” Powell answered affirmatively, at which point Padgett requested a bench conference and argued that APAC had, by this series of questions, opened the door to the remedial measures. The court agreed, citing Brooks, supra. After the court announced its ruling, no objection was voiced by APAC. Powell was asked if he took any measures regarding the signs after this accident. He said he called his supervisor at DOT and, after inquiring whether additional signs should be added, instructed APAC to put up two new signs and what to put on them.

APAC again moved for mistrial which was denied by the court, based on Brooks.

Brooks involved a suit for loss of personal property destroyed in an apartment fire. The Brookses’ theory was that the fire had occurred because of insulation which had been improperly installed over recessed lighting. The insulation was installed in their building on June 2 and their apartment burned on June 4. Several other buildings in the complex had been similarly insulated but none of these had burned. After the Brookses’ fire, the other buildings in their complex were inspected and alterations made in the insulation.

During trial, the owner’s counsel questioned the former employee who had installed the insulation about insulation in other complexes and whether any of the other complexes had had fires. The employee answered negatively.

Assuming that the witness’ answer encompassed all complexes, the Brookses attempted to introduce evidence of the repairs in order to rebut the inference that, as of the time of trial, no other apartments had burned even though the insulation was improperly installed. The trial court would not allow the evidence, because evidence of subsequent remedial measures is inadmissible. Chastain v. Fuqua Indus., 156 Ga. App. 719 (3) (275 SE2d 679) (1980).

This holding was reversed. The Supreme Court held that, while the rule generally prohibiting admission of subsequent remedial measures was extant, if the evidence of subsequent remedial measures was introduced for purposes other than showing that the defendant recognized and admitted his negligence, it could be admissible with proper instructions on its purpose, and that the Brookses’ situation was such an instance since the door to rebuttal testimony of remedial measures had been opened by the owner’s questions.

This case is similar. By creating the impression in Padgett’s cross-examination of Powell that the DOT engineer was satisfied with the placement of the signs after the accident, he opened the door to prove that, instead, he had it changed. The court expressly charged the jury as to the limited purpose of this evidence, i.e., its bearing on DOT’s satisfaction with the sign placement.

Our holding is further strengthened by Padgett’s rebuttal witness, who testified that immediately after the accident, while Padgett was still awaiting an ambulance, two men who appeared to be APAC employees arrived. One came over to check on Padgett while the other went up to the sign, then placed below the crest of the hill, and moved it to the crest of the hill. Thus, Powell’s opinion that the signs were acceptable after the accident was based on the sign’s having been moved. While such evidence was not admissible prior to the door having been opened by APAC, it was so afterwards. Brooks, supra; King Cotton v. Powers, 190 Ga. App. 845, 849 (3) (380 SE2d 481) (1989).

Furthermore, Powell was not an employee of APAC, so his judgment that signs should be placed further back and his directing APAC to do so could not be taken as an admission of negligence by APAC. It was compelled to take the remedial measure, not because it doubted its fulfillment of duty earlier or in some way admitted negligence but because it was instructed by DOT to do so.

Decided November 28, 1989.

Clark & Clark, Fred S. Clark, Merryl S. Mandus, Paul Webb, Jr., for appellant.

James 0. Wilson, Jr., for appellee.

There was no error in the admission of the evidence under these circumstances, nor in the denial of the motions for mistrial based on it.

2. APAC also enumerates the court’s allowance of a hypothetical question of an expert because it was based on facts not in evidence, i.e., that there was no sign at the crest of the hill and that traffic had backed up to the crest. OCGA § 24-9-67.

Mrs. Brown and the rebuttal witness both testified to these facts; that the testimony was circumstantial does not affect the viability of the hypothetical. Stoneridge Properties v. Kuper, 178 Ga. App. 409, 413 (2) (343 SE2d 424) (1986). Whether there was insufficient knowledge upon which the expert could render his opinion goes not to the admissibility of that opinion, but to the credibility of the witness. Hardin v. Hunter, 174 Ga. App. 756 (1) (331 SE2d 83) (1985); Jones v. Ray, 159 Ga. App. 734, 736 (4) (285 SE2d 42) (1981).

Judgment affirmed.

Car ley, C. J., and McMurray, P. J., concur.


text:
    A89A1435.
    BAILEY v. OCCIDENTAL FIRE & CASUALTY COMPANY OF NORTH CAROLINA.
    (388 SE2d 899)
   Carley, Chief Judge.

On May 22, 1986, appellant-plaintiff’s wife was killed in a collision between her vehicle and a truck insured by appellee-defendant. Appellant filed suit against the driver and owner of the truck and, asserting the right to bring a direct pre-judgment action pursuant to OCGA § 46-7-12 (e), he joined appellee as a defendant in the action. Appellee subsequently moved for summary judgment. In support of its motion, appellee produced uncontradicted evidence that the truck which it insured was engaged exclusively in the transportation of gravel, crushed stone, plant mix road material or road base materials. Based upon this uncontradicted evidence, appellee urged that the truck was not a “motor common carrier” and that OCGA § 46-7-12 (e) did not, therefore, afford appellant the right to join it as a defendant in the suit against its insured. The trial court granted appellee’s motion for summary judgment and appellant appeals.

The effect of the exemption of appellee’s insured from the definition of “motor common carrier” contained in OCGA § 46-1-1 (7) (C) (xiv), formerly codified as OCGA .§ 46-1-1 (12) (C) (xiv), is that the collision with the truck gives appellant no cause of action arising under the “Motor Common Carrier” article of the Code, and that appellee accordingly cannot be considered an insurer subject to the direct pre-judgment action provisions of OCGA § 46-7-12 (e) contained in that article. See National Indem. Co. v. Tatum, 193 Ga. App. 698 (_ SE2d _) (1989). The trial court correctly granted summary judgment in favor of appellee.

Decided November 28, 1989.

Lokey & Bowden, Malcolm Smith, G. Melton Mobley, for appellant.

Dennis, Corry, Porter & Thornton, R. Clay Porter, Robert E. Corry, Jr., Grant B. Smith, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concurs.


text:
    A89A1575.
    ASBERRY v. THE STATE.
    (389 SE2d 18)
   Beasley, Judge.

Asberry, convicted of second degree vehicular homicide (OCGA § 40-6-393 (b)), driving without a driver’s license (OCGA § 40-5-20), and failure to keep his vehicle within a single lane (OCGA § 40-6-48), appeals the denial of his motion for new trial. His three enumerations of error relate to the jury charge.

Asberry had no driver’s license, although he had been driving for approximately nine years. On November 18, 1987, he was driving eastbound on Covington Highway and moved into the adjacent lane, back into the lane in which he had been driving, and then again into the adjacent lane. When his car moved into the lane of on-coming traffic, it struck another vehicle travelling westbound driven by Holmes. This collision flipped Holmes’ car which struck a third car driven by Hammock. Holmes’ car stopped upside down on impact with a telephone pole and he died as a result of trauma from the accident. Asberry claimed later, but not at the time of the accident, that he was struck from the rear before he crossed the center lane, which caused the accident in which Holmes died. Police found no evidence that he was struck from the rear.

1. Asberry contends that the court erred in not giving the requested charge on criminal negligence as the mens rea in this second degree vehicular homicide case.

The charge as to criminal negligence is applicable to second degree homicide by vehicle. Abernathy v. State, 191 Ga. App. 350 (381 SE2d 537) (1989). Criminal negligence, however, is only appropriate when the violation of the safety statute regulating the use of the highways is “intentional, wilful, or wanton, or [when] the violation, though unintentional, is accompanied by recklessness or is under circumstances from which probable death or injury to others might be reasonably anticipated.” Johnson v. State, 170 Ga. App. 433, 436 (3) (317 SE2d 213) (1984); Abernathy, supra at 351 (2).

Decided November 28, 1989.

Carl A. Johnston, for appellant.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., Anne M. Elmore, Debra J. Blum, Assistant Solicitors, for appellee.

The refusal to charge the request was not error. The state’s case establishes that Asberry intended to violate the rules of the road by changing lanes. Asberry does not attempt to show that his actions constitute criminal negligence as defined in Abernathy but rather that Holmes’ death occurred by accident when Asberry was hit from the rear by another vehicle. The theory of criminal negligence is not supported by the facts or the evidence. The court is not obligated to give a charge not adjusted to the facts. Gann v. State, 190 Ga. App. 82, 85 (2) (378 SE2d 369) (1989); Forehand v. State, 188 Ga. App. 527 (2) (373 SE2d 382) (1988); Daniels v. State, 184 Ga. App. 689 (1) (362 SE2d 775) (1987).

2. Asberry asserts error in the trial court’s failure to charge as to when a traffic violation constitutes criminal negligence. Division 1 renders it unnecessary to address this alleged error, as it was not error to deny the request to charge on criminal negligence. In addition, the requested charge suffers from the same defect, that of incompleteness, as the charge refused in Abernathy, supra, on which Asberry totally relies.

3. Asberry contends the trial judge erred by failing to charge, without request, proximate causation as an essential element of vehicular homicide in the second degree. “Elaborations on principles of general law must always be requested for the failure to charge to be error.” McFarland v. State, 109 Ga. App. 688, 689 (1) (137 SE2d 308) (1964). “ ‘When a party has requested no special instructions as to the meaning of legal terms and technical words, this is not generally a ground for new trial.’ ” Deshazier v. State, 155 Ga. App. 526, 528 (7) (271 SE2d 664) (1980); Smith v. State, 143 Ga. App. 347, 350 (2) (238 SE2d 698) (1977). Even if Asberry had submitted a written request for such a charge, no error was demonstrated. Hoffer v. State, 192 Ga. App. 378 (384 SE2d 902) (1989); Eidson v. State, 167 Ga. App. 184 (2) (305 SE2d 787) (1983).

Judgment affirmed.

Car ley, C. J., and McMurray, P. J., concur.


text:
    A89A1215.
    GADD et al. v. WILSON & COMPANY ENGINEERS et al.
    (388 SE2d 875)
   Beasley, Judge.

James Gadd and his wife sued Wilson & Company Engineers and Mann Mechanical Contractors, claiming that Wilson negligently designed and Mann negligently refurbished Building B-91, the chemical milling building of Lockheed, which was Mr. Gadd’s employer, and that Gadd was seriously injured as a result and his wife lost consortium. The Gadds appeal the grant of Wilson’s Motion to Dismiss (converted to one for Summary Judgment) and the jury verdict in favor of Mann.

Viewed in favor of the verdict, the evidence was that Gadd worked as a waste water treatment technician in Building B-10A. Building B-91 was located next to Building B-10A and housed the chemical etching operation of Lockheed.

B-91 was constructed in 1967 and Wilson & Company was the engineer which designed the project and supervised the construction. B-10A was built in 1971, and Wilson was the designer of that building. At that time, a PVC pipe was installed underground linking B-91 and B-10A, which was the concentrated chemical line. Thereafter, Lockheed altered the original design so that the system allowed concentrated chemicals to flow into an open trench which connected B-91 and B-10A. Prior to that, the chemicals could only flow through the concentrated chemical line into tanks to be treated and then released slowly into the waste treatment system. B-91 sat idle for ten years until 1983 when Lockheed, under a contract with the Air Force, hired Mann Mechanical on a time and materials basis to refurbish it. The refurbishing included welding and other renovation on the steel tanks in B-91, but no work on the one fiberglass tank.

The work was completed in August 1983 and the tanks in B-91 were filled with sulfuric acid, sodium hydrosulfide, and other chemicals used in the etching process. On December 6, 1983, the fiberglass tank, containing sodium hydrosulfide, leaked. Because of concrete berms surrounding the tank, the chemical was trapped and diverted into a pit used to collect leaking chemicals. After the leak was spotted, the remainder of the sodium hydrosulfide was pumped into an adjacent steel tank. Shortly after the 2:00 p.m. break, Lockheed employee Canup advised Lockheed Control Engineer Hyde that the contents of the pit in B-91 needed to be pumped over to B-10A. This was done, using the open trench.

That same morning, Gadd had noticed an acid leak in B-10A. The acid had been washed into the trench. Upon returning from his 2:00 p.m. break, Gadd was overcome by hydrogen sulfide gas, caused by the combination of sodium hydrosulfide and acid.

1. Suit was filed on December 5, 1985, the last day of the limitation period. The complaint alleged that CT Corporation was the agent for service for Wilson and service was made on CT on December 6. A letter from CT advising that it was not the agent was filed on December 11. Service was not obtained on Wilson, located in Kansas, until April 7, 1986. Wilson’s motion based on the failure to perfect service within a reasonable period of time after expiration of the statute of limitations was granted. The Gadds contend this was error.

The court assumed without deciding that plaintiffs’ efforts to obtain service were acceptable from December 11 until January 1986. At that time, plaintiffs were advised that Wilson was located in Kansas and service was still not attempted there until April. The court found this insufficient and there is no basis for disturbing this exercise of discretion. Varricchio v. Johnson, 188 Ga. App. 144, 145 (372 SE2d 445) (1988); Brown v. Bailey, 180 Ga. App. 555, 557 (1) (349 SE2d 792) (1986); Ingram v. Grose, 180 Ga. App. 647 (350 SE2d 289) (1986).

2. The second enumeration alleges error in the allowance of testimony which plaintiffs contend varied the terms of the written contract between Mann and Lockheed. Bill Mann, president of Mann, was called by plaintiffs for cross-examination. He testified that the work was verbally agreed upon, work began, and it was not until two months later that the written purchase order was issued. He further testified that Mann’s employees did only what they were directed to do by Lockheed’s and Wilson’s representatives.

The parol evidence objected to was elicited by plaintiffs and they will not be heard to object to it. The only objection made by plaintiffs was when the witness was recalled for examination by defendant Mann. That objection was that “the parole (sic) evidence rule and the best evidence rule require that the written contract, which is in evidence, be entered into evidence, and that is the best evidence of what the contract was.” Since, as evidenced by the objection itself, the written contract was in evidence, there was nothing further required of the trial court and there was no error.

The remainder of the argument in this section of the brief deals with matters which are not enumerated as error and presents nothing for our consideration. Sanders v. Hughes, 183 Ga. App. 601, 604 (4) (359 SE2d 396) (1987).

3. Enumerations 3 and 4 deal with the failure of the trial court to charge OCGA § 43-15-24.

That statute makes it a misdemeanor for “any private or commercial entity to engage in the construction of any work or structures involving professional engineering which by the nature of their function or existence could adversely affect or jeopardize the health, safety, or welfare of the public unless the plans and specifications have been prepared under the direct supervision or review of and bear the seal of, and the construction is executed under the direct supervision of or review by, a registered professional engineer or architect.”

Plaintiffs submitted a written request for such a charge. During the charge conference, although this specific charge was not discussed, the court stated, “I think the court can give the remainder of the Plaintiffs’ requests to charge.” After closing arguments had been made, the court advised plaintiffs that it did not believe that Request 24 was adjusted to the evidence and that plaintiffs had acknowledged that any such failure was Lockheed’s and not Mann’s. Timely objection was made to this failure to charge.

The charge was not adjusted to the evidence since the project did not involve original construction, but only refurbishment pursuant to the original plans and specifications prepared when B-91 was constructed in 1967. Also, there was no evidence that any engineering required on the project was the responsibility of Mann. Instead, Wilson was on the project as engineer, and Lockheed had the supervisor of the Plant Construction Group, Hernandez, in charge of the project. Failure to give the charge upon request was not error. Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 860 (6) (360 SE2d 418) (1987).

With regard to the court’s refusal to give plaintiffs’ Request to Charge 24 after initially indicating it would do so, plaintiffs made no request to reargue the case after being advised of the court’s decision not to give the charge. If counsel had been misled as to the intended charge, the remedy was to request to reargue the facts in light of the charge given. Daniels v. State, 137 Ga. App. 371, 373 (4) (224 SE2d 60) (1976); State Farm &c. Ins. Co. v. U. S. Fidelity &c. Co., 190 Ga. App. 220, 223 (7) (378 SE2d 400) (1989); Hudson v. State, 150 Ga. App. 126 (3) (257 SE2d 312) (1979); Post-Tensioned &c. v. VSL Corp., 143 Ga. App. 148, 150 (5) (237 SE2d 618) (1977); compare Goins v. State, 177 Ga. App. 536 (1) (339 SE2d 790) (1986).

4. Finally, error is alleged in the admission of the testimony of Lockheed’s employee Hernandez concerning the qualifications of Doug Mull, a Wilson & Company engineer. Mull had twice been referred to in testimony presented by plaintiffs as the Wilson & Company representative on site during the refurbishment.

Objection was made when Hernandez was asked if he knew Mull’s qualifications. The objected-to question was not answered. Rather, Hernandez was asked if Mull “was a truck driver or engineer.” This question was not objected to at trial and no objection will be considered here.

Decided November 16, 1989

Rehearing denied November 29, 1989

Robert M. Goldberg, Alan Z. Eisenstein, for appellants.

Rawlins & Mobley, David D. Rawlins, Douglas A. Wilde, for appellees.

When Hernandez answered the question by stating that Mull was a registered professional engineer, plaintiffs moved to strike the testimony on the ground that the registration would be the highest and best evidence. The court agreed with that position, but allowed Hernandez to testify regarding in what capacity he dealt with Mull. The objection made at trial to this testimony is not pursued here and will not be further considered.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1432.
    FULLER v. MAYOR & ALDERMEN OF SAVANNAH.
    (389 SE2d 7)
   Beasley, Judge.

In June 1980, Fuller d/b/a Party Time Production entered into an agreement with the Mayor and Aldermen of the City of Savannah to lease the Savannah Civic & Convention Center for a July 4 Peabo Bryson concert. The performance was cancelled. Fuller, individually and d/b/a Party Time Production, filed an amended eight-count complaint against the mayor and the aldermen alleging breach of contract, unlawful interference with contractual relationships, misrepresentation, false imprisonment, negligence, and violation of 42 USCA §§ 1982 and 1983. Defendants counterclaimed for expenses incurred as a result of the lease plus punitive damages and costs.

The case went to the jury on the breach of contract claims and on the counterclaim. The jury returned a verdict of $2,135.50 for Fuller in the case-in-chief and $2,135.50 plus interest for the mayor and aldermen on the counterclaim. Judgment was entered accordingly.

Fuller, who represented himself at trial, unsuccessfully moved for a new trial. He filed a notice of appeal pro se from the judgment on March 4, 1988. The notice specified that no portion of the record was to be omitted on appeal and that a transcript of evidence and proceedings would be filed for inclusion.

On October 14, defendants moved to dismiss the appeal on the basis that plaintiffs failure to have the transcript filed was inexcusable and unreasonable. The transcript was filed on November 10. Following a hearing, the trial court dismissed the appeal on November 18 specifically finding that there was a delay of eight months and six days after the filing of the notice of appeal before the transcript was filed, that there was no motion or request for an extension of time in which to file the transcript, and that at the hearing, plaintiff offered no excuse whatsoever for having failed to file a request for extension.

On January 27, 1989, Fuller moved for re-entry of the dismissal order nunc pro tunc on the basis that he had not received a copy of it. The court accepted that Fuller had not received notice of the order and re-entered the order dismissing the appeal on February 1, nunc pro tunc November 17, 1988, the date the previous order had been signed.

Fuller appeals from the February 1 order. He challenges the dismissal of his first notice of appeal as well as the trial court’s grants of summary judgment on certain of his claims, the refusal to allow the reopening of evidence, certain aspects of the jury charge, the court’s refusal to accept the initial verdict, and the court’s refusal to grant a new trial.

1. The dismissal of the appeal must be addressed first as it is dispositive.

a) Although the essence of the February 1 order was a restatement of the November 18 dismissal, it is properly the subject of this appeal because it is undisputed that Fuller failed to receive timely notice of the initial ruling. Compare Duncan v. Ball, 174 Ga. App. 341, 344 (III) (330 SE2d 160) (1985). Although the second order was entered at the following term of court, see OCGA § 15-6-3 (17), the limitation of the inherent power of the trial court to change its judgment during the term at which it is entered, see Ammons v. Bolick, 233 Ga. 324, 325 (1) (210 SE2d 796) (1974), is not at issue because the court was not substantively changing or modifying its determination. It was merely redating its decision to prevent Fuller’s being foreclosed from appellate review through no fault of his own. The Court has jurisdiction of the appeal.

b) As appellant acknowledges, his circumstance is much like that in Glen Restaurants v. Bldg. 5 Assoc., 189 Ga. App. 327 (375 SE2d 492) (1988). He distinguishes Glen in that it was decided after all the relevant events in his own case, and that prior to Glen it had not been decided that failure to request an extension of time was fatal to an appeal. He further maintains that despite Glen his delay was not unreasonable within the meaning of OCGA § 5-6-48 (c).

Contrary to appellant’s assertion, Glen was decided upon well-established principles applicable to this case. See In re G. W. H., 168 Ga. App. 845, 846 (310 SE2d 573) (1983); Dampier v. First Bank &c. Co., 153 Ga. App. 756, 757 (266 SE2d 539) (1980). It reaffirmed that “[f]ailure of the appellant to request an extension for the filing of the transcript is not in itself a ground for dismissal of the appeal absent a judicial determination that the resulting delay was both unreasonable and inexcusable. Young v. Jones, 147 Ga. App. 65 (2) (248 SE2d 49) (1978).” Glen, supra at 328 (2). Even if Glen forged new ground, it could appropriately be applied retroactively here. See Abu-Khdeir v. T. J. Maxx, Inc., 191 Ga. App. 523 (382 SE2d 216) (1989).

Decided November 14, 1989

Rehearing denied November 29, 1989

David A. Webster, for appellant.

Friedman, Haslam, Weiner & Ginsberg, Patrick T. O’Connor, James B. Blackburn, for appellee.

Although Fuller made an initial request to obtain the transcript, the record supports the trial court’s finding that Fuller made no timely request for an extension of time in which to file a delayed transcript. Only after defendants moved to dismiss the appeal did Fuller file an affidavit attempting to chronicle his communications with the court reporter responsible for preparing it.

The court reporter was subpoenaed to the hearing on the motion to dismiss. Fuller had the opportunity to demonstrate via the reporter or otherwise any justification for his own action or inaction regarding the delay, including the failure to request an extension. The court found that Fuller did not offer any excuse for the failure and there is nothing contrary of record. “ ‘(T)he fact that the initial delay in the preparation of the transcript may not have been the fault of the defendant does not excuse the filing delay, in the absence of a proper request by the defendant for an extension of time.’ [Cits.]” Glen at 328 (2) quoting Dampier, supra. Nor is appellant excused from the legal requirements to preserve his appeal merely because he has chosen to proceed on his own.

“The trial court’s decision on the issue of the unreasonable and inexcusable nature of the delay will be reversed only for abuse of discretion. [Cit.]” Glen at 327 (2). See also Duncan, supra at 343 (2). Because of the more than eight-month delay in the filing of the transcript, the failure to request an extension of time, and the absence of any articulated excuse for the failure, the court did not abuse its discretion in finding the delay to be unreasonable and inexcusable. Id. at 328 (2).

2. The determination in Division 1 renders the remaining enumerations of error moot.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    77371.
    HEARD v. NEIGHBOR NEWSPAPERS, INC. et al.
    (389 SE2d 267)
   Pope, Judge.

In Heard v. Neighbor Newspapers, 190 Ga. App. 756 (380 SE2d 279) (1989), we held that the publication of information from a welfare fraud investigator as to what transpired in court was statutorily privileged and that the plaintiff in this case had failed to create an issue of fact as to the malice of the defendant newspaper which would be necessary to defeat the statutory privilege. The Georgia Supreme Court granted certiorari and in Heard v. Neighbor Newspapers, 259 Ga. 458 (383 SE2d 553) (1989), held that information received from a welfare investigator did not fall within the privilege granted by OCGA § 51-5-7 (7) to “information received from any arresting officer or police authorities.” The Supreme Court held that summary judgment should not have been granted to defendant newspaper. Thus, our judgment on the issue of liability is vacated.

However, the motion for summary judgment filed by defendant with the trial court raised not only the issue of summary judgment on plaintiff’s complaint against it in its entirety but also partial summary judgment on the issue of plaintiff’s claim for punitive damages. The trial court’s order recited that defendant’s motion for summary judgment was granted “in its entirety” thus granting defendant summary judgment not only on the issue of liability in general but also on the issue of punitive damages. The Supreme Court did not address the issue of punitive damages but granted certiorari only on the issue of whether the statutory privilege entitled defendant to summary judgment on plaintiff’s claim in its entirety. Thus, we must now examine the remaining enumerations of error set forth by the plaintiff which relate to whether the trial court erred in granting defendant’s motion for partial summary judgment on the issue of punitive damages.

Punitive damages may be recovered only upon a “showing of knowledge of falsity or reckless disregard for the truth.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 349 (94 SC 2997, 41 LE2d 789) (1974). A plaintiff who does not prove knowledge of falsity or reckless disregard for the truth is restricted to compensation for actual injury. Id. As discussed in Division 2 of our earlier opinion, 190 Ga. App. at 758, in support of its motion for summary judgment the defendant submitted the affidavit of its reporter describing the facts and circumstances surrounding the welfare investigator’s visit to her office and the information she received from him. She attested that she believed the information received from the investigator was true. In response, plaintiff submitted the affidavit of an individual who purported to be an expert in news reporting who asserted that, in his opinion, the article in question was published without adequate investigation and verification of its contents and that its publication did not meet acceptable industry standards. As we pointed out in the earlier opinion, “[a]t best, the expert’s affidavit created an issue of fact as to the reporter’s negligence.” Id. at 759. It did not, however, create an issue of fact as to defendant’s knowledge of the falsity of the information supplied by the welfare investigator or as to defendant’s reckless disregard for the truth. The plaintiffs having failed to dispute the facts established by the reporter’s affidavit, no issue of fact remains as to defendant’s recklessness or knowledge of the falsity of the information it received and defendant is entitled to partial summary judgment on the issue of punitive damages.

Decided November 29, 1989.

Jack F. Witcher, John E. Gilchrist, Stephen E. Garner, for appellant.

Long, Aldridge & Norman, Albert G. Norman, Jr., F. T. Davis, Jr., Barnes & Browning, Roy E. Barnes, Alston & Bird, Jay D. Bennett, for appellees.

Judgment reversed in part and affirmed in part.

McMurray, P. J., and Benham, J., concur.


text:
    A89A1166.
    CHAVERS et al. v. KENT DIVERSIFIED PRODUCTS, INC.
    (389 SE2d 261)
   Carley, Chief Judge.

Appellant-plaintiffs entered into an agreement whereby they “granted, bargained, sold and conveyed . . . unto [appellee-defendant] . . . [a]ll timber standing, lying, growing and being on [certain] described property. ...” Under the terms of the agreement, appellee was given 24 months within which “to cut and remove the above-described timber and trees from said tract of land, and all of the said timber and trees that are not cut and removed by said expiration date shall revert to [appellants].” The agreement did not provide for the payment of a specified gross amount to appellants. Instead, it provided for appellee’s payment of a specified varying dollar amount per cord of pine pulpwood, pine sawtimber, and certain types of hardwood.

Over the 24-month period specified in the agreement, appellee cut some, but not all, of the timber. After the uncut timber had reverted to appellants, they filed this action against appellee. Appellants’ complaint, as amended, alleged that $128,455 was the full purchase price of the timber that had been conveyed to appellee, but that they had been paid only $88,016 for the timber that appellee had actually cut. As the result of this alleged failure to pay the full purchase price of $128,455, appellants sought to recover from appellee the principal amount of $40,439. Appellee answered, denying the material allegations of the complaint and asserting, in effect, that it was contractually obligated to pay only for such timber as it had actually cut. Appellee also filed a two-count counterclaim against appellants. In one count, appellee sought to recover an alleged overpayment to appellants of $2,480. In the other count, appellee alleged a Yost counterclaim for abusive litigation.

After discovery, appellants filed a motion for summary judgment as to both their main action and appellee’s counterclaims. Appellee filed a cross-motion for summary judgment on appellants’ main action. Pursuant to OCGA § 9-11-56 (h) and Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980), appellants appeal directly from the grant of summary judgment in favor of appellee and from the denial of their motion for summary judgment.

1. Appellants urge that no genuine issue of material fact remains as to appellee’s contractual obligation to pay for all timber located on the tract regardless of whether that timber was cut into cords and removed during the 24-month period. Appellee urges that no genuine issue of material fact remains as to its contractual obligation to pay for only such timber located on the tract as it actually cut into cords and removed during that period.

“The relation between the parties to a conveyance whereby one sells to the other the timber on land is that of vendor and vendee, and not that of landlord and tenant; and the conveyance is a deed, not a lease, although the time within which the timber is to be cut and removed is limited to less than five years. [Cits.] .... The conveyance of timber . . . authorizes the grantee, not merely to use it and return it, but to take it away, sell it, and otherwise possess it.” McLendon Bros. v. Finch, 2 Ga. App. 421, 423-424 (58 SE 690) (1907). “A conveyance of timber which includes a limitation of time for the cutting and removal thereof conveys a title in the timber defeasible as to timber not removed within the stated period. After the time provided has elapsed, title to the remaining timber revests in the grantor. [Cit.]” Newport Timber Corp. v. Floyd, 247 Ga. 535, 540 (3) (277 SE2d 646) (1981). These principles are controlling and applicable in the instant case, notwithstanding any dicta contained in Johnson v. Truitt, 122 Ga. 327 (50 SE 135) (1905). See Camp v. Horton, 131 Ga. 793, 797-798 (63 SE 351) (1909).

Accordingly, for a 24-month period, appellee was vested with title to “all timber” on the tract and, during that period, it was authorized to cut and remove “all timber” located thereon. The conveyance to appellee of “all timber” for the 24-month period was all-inclusive and the broad scope of that conveyance could not otherwise be decreased simply because the consideration was expressed in terms of “cords” of timber. “[I]n this case, the subject-matter has been clearly and specifically described [as ‘all timber’ and] it could not properly be diminished or limited by a mere general recital of consideration in some other part of the agreement. Any such treatment would allow the otherwise clear and specific terms as to the quantum of the subject-matter to be varied under the guise of inquiring into the consideration, which is never permissible under the law. [Cits.]” McCann v. Glynn Lumber Co., 199 Ga. 669, 678-679 (2) (34 SE2d 839) (1945). Likewise, the mere fact that the consideration for the conveyance was expressed in terms of “cords” of timber cannot otherwise diminish appellee’s contractual obligation to pay the agreed-upon purchase price for “all timber” which was conveyed to it. Cf. Norman v. Ray, 34 Ga. App. 380 (129 SE 795) (1925). As consideration for this conveyance of “all timber,” appellee expressly agreed to pay appellants a designated varying dollar amount per cord of pine and hardwood and did not expressly agree to pay for only such timber as it might actually cut into cords and remove during the 24-month period. Compare Massee & Felton Lumber Co. v. Macon Cooperage Co., 44 Ga. App. 590 (1) (162 SE 396) (1932). Accordingly, under the agreement, as properly construed, appellee’s contractual obligation was not limited to paying for only such cords of timber as it actually cut and removed from the tract during the 24-month period. Appellee’s contractual obligation was to pay for all cords of timber on the tract regardless of whether those cords were cut and removed during the period. Appellants “sold [appellee] the timber. [Appellee] accepted the timber[.] [If appellee paid] only a part of the purchase price thereof[,] [appellants] could properly sue [appellee] for the . . . balance of the purchase-price [of ‘all timber’ located on the tract].” Seabolt v. Christian, 82 Ga. App. 167, 171 (60 SE2d 540) (1950).

In support of their motion for summary judgment, appellants produced evidence in the form of a “timber cruise” which showed the estimated number of total cords of timber located on the tract at the time of the conveyance of “all timber” to appellee. This “timber cruise” was probative evidence of the number of cords of timber that were located on the tract at that time. See generally Warwick Long Leaf Co. v. Zorn, 95 Ga. App. 344, 345 (3) (98 SE2d 62) (1957). See also Pippin v. Burnum, 172 Ga. App. 553, 554 (1, 2) (323 SE2d 857) (1984). When the number of cords contained in appellants’ “timber cruise” is multiplied by the applicable varying dollar amounts per cord specified in the agreement as the agreed-upon consideration for the conveyance of “all timber” on the tract, the resulting figure is $128,455. When the $88,016 that was previously paid to appellants by appellee is subtracted from the agreed-upon consideration of $128,455, the unpaid balance of the purchase price for the conveyance of “all timber” is $40,439. Appellee produced in opposition no evidence to authorize a finding that the unpaid balance of the purchase price for “all timber” conveyed to it would be any less than that shown by appellants’ evidence. It follows that, as to appellants’ main claim, the trial court erred in granting appellee’s motion for summary judgment and in failing to grant summary judgment in favor of appellants in the amount of $40,439.

Decided November 20, 1989

Rehearing denied November 30, 1989

McCorkle, Pedigo, Hunter & Johnson, David H. Johnson, for appellants.

Jones, Osteen, Jones & Arnold, Charles M. Jones, G. Brinson Williams, Jr., for appellee.

2. Our holding in Division 1 of this opinion also mandates the reversal of the trial court’s denial of appellants’ motion for summary judgment on appellee’s counterclaims. Insofar as appellee owes $40,439 to appellants, it clearly has no viable claim against them for an alleged overpayment or for abusive litigation.

3. The grant of summary judgment in favor of appellee and the denial of summary judgment in favor of appellants must be reversed.

Judgments reversed.

McMurray, P. J., and Beasley, J., concur.