text:
    76488.
    WALL v. RANGER INSURANCE COMPANY.
    (374 SE2d 333)
   Banke, Presiding Judge.

Wall sued Ranger Insurance Company seeking to recover casualty benefits allegedly due him under a truck cargo insurance policy issued by Ranger. He brings this appeal from the grant of Ranger’s motion for summary judgment.

The policy covered three listed vehicles but also provided for immediate coverage of “substituted” vehicles, subject to the following proviso: “The insured hereby agrees to report to this company in writing all such substitutions as soon as practicable and to pay additional premium if required.” During the term of the policy, Wall apparently disposed of at least two of the three listed vehicles and acquired ownership of various other vehicles, including a 1973 Trailmobile trailer.

In September and October 1981, Wall verbally advised the agent who had sold him the policy that he wished to make certain changes with regard to the vehicles listed therein, but he did not at that time supply the agent with specific information concerning the vehicles to be added. On November 2, 1981, the agent sent a letter to Wall advising him of the coverage presently in force and requesting that he provide specific information concerning any additional vehicles he wanted listed “for coverage” under the policy. On November 18, 1981, the unlisted 1973 Trailmobile trailer was involved in an accident which allegedly resulted in a cargo loss in excess of $64,000. The following day, Wall’s insurance agent sent a letter to Ranger requesting that the policy be endorsed, effective November 10, 1981, to delete two trailers previously listed as insured and to add four trailers, including the 1973 Trailmobile.

Ranger denied Wall’s demand for retroactive coverage on the 1973 Trailmobile and refused to defend an action brought against him to recover damages for the cargo loss. Wall then instituted the present action against Ranger seeking to recover the amount of the cargo loss, plus a bad-faith penalty and attorney fees. Ranger moved for summary judgment on the ground that Wall’s claim was barred by a policy provision requiring any such suit to be filed within one year of the date of loss. The trial court ruled in favor of Wall on that issue but nevertheless granted Ranger’s motion for summary judgment, concluding that Wall’s failure to give written notice of the substitution of the 1973 Trailmobile in accordance with the policy requirements barred him from any recovery as a matter of law. Held:

Wall contends that the trial court erred in granting summary judgment to Ranger on the basis of a defense which Ranger had never asserted. “ ‘A court may properly grant summary judgment on a ground other than that assigned in the motion, where it is clear there is no genuine issue of material fact.’ ” Martin v. Newman, 162 Ga. App. 725 (293 SE2d 18) (1982), citing 6 Moore’s Fed. Practice 2254, 2255, n. 14, § 56.14 [1]. See also Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 49 (332 SE2d 304) (1985). In such a situation, the crucial inquiry is whether the party against whom summary judgment is sought has had a “full and final opportunity to meet and attempt to controvert the assertions against him.” Applegarth Supply Co. v. Schaffer, 130 Ga. App. 353, 356-357 (203 SE2d 277) (1973); Martin v. Newman, supra at 726; Colbert v. Piggly Wiggly Southern, supra at 48.

Although it is true that Ranger did not specifically assert Wall’s failure to comply with the written notice of substitution requirement either in its answer or in its motion for summary judgment, the issue was litigated in a motion for reconsideration which Wall filed after Ranger’s motion for summary judgment was granted. In his motion for reconsideration, Wall asserted that any lack of compliance with the notice provision on his part was excused by Ranger’s failure to provide him with a copy of the policy. However, the record reveals without dispute that on three occasions prior to the accident Wall was specifically advised by his own agent of the necessity of providing identifying information concerning any unlisted vehicles for which he desired coverage. Under such circumstances, Wall’s failure to supply that information cannot reasonably be attributed to Ranger’s alleged failure to send him a copy of the policy. Compare Woods v. State Farm &c. Ins. Co., 234 Ga. 782 (218 SE2d 65) (1975).

We note that to excuse Wall from compliance with the notice requirement under the circumstances of this case would, in effect, be to force the insurer to provide retroactive coverage not merely for one or more replacement vehicles but for two additional vehicles for which no premium had been paid. There being no question in the present case that Wall failed to comply with the notice requirement, and no legal excuse having been offered for such lack of compliance, it is apparent that no purpose would be served by returning the case to the trial court for further litigation. The grant of summary judgment to Ranger is accordingly affirmed.

Judgment affirmed.

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

Decided September 15, 1988

Rehearing denied October 13, 1988

George M. Peagler, Jr., James V. Towson, Craig N. Cowart, for appellant.

C. Richard Langley, for appellee.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    76928.
    UNION CAMP CORPORATION v. DALEY.
    (374 SE2d 329)
   Birdsong, Chief Judge.

The defendant below, Union Camp Corporation, appeals the jury verdict for the plaintiff Willard Daley in this injury case, and the failure of the trial court to grant Union Camp a directed verdict or a judgment n.o.v. Union Camp also asserts errors in the jury charge and admission of certain evidence and complains on the general grounds. Held:

1. We include here resolution of the appellant’s complaints as to sufficiency of the evidence (general grounds) and as to the trial court’s failure to grant directed verdict or judgment n.o.v.

The jury heard the evidence and rendered a finding that the facts before it, under the law charged to them, supported a verdict for the plaintiff on the preponderance of the evidence. On appeal, we are bound to view and resolve the evidence in favor of the verdict (Drake v. State, 241 Ga. 583, 585 (247 SE2d 57)), and to resolve any doubt or ambiguity in favor of the verdict, for the presumption is that if there is any doubt as to the construction of the evidence, the jury resolved it in fashioning the verdict.

A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. OCGA § 9-11-50 (a) (b). Viewing this evidence in favor of the jury’s verdict, we cannot find the evidence, with all its reasonable deductions, demanded a verdict for the defendant, even though it is entirely circumstantial. See Shepherd v. Holmes, 184 Ga. App. 648, 649 (362 SE2d 396) as to the sufficiency of circumstantial evidence generally in a slip and fall/foreign substance case.

The evidence showed that the plaintiff Grady had worked 26 years switching rail cars. He was an employee of Central of Georgia Railroad, switching rail cars in the yard of Union Camp Corporation. The work involved the movement of tank cars in the yard between the “tall oil” plant and the distillation plant. A substance known as “pitch,” a by-product of paper manufacturing, would be loaded in the distillation plant and moved by tank car to the tall oil plant and used as fuel in the mill operations. If employees of Union Camp did not put a rubber gasket in the opening of the tank lid, and secure the lid tightly, this substance would slosh out of the cars as they were being moved, and sometimes onto the ground and rails.

A railroad employee testified that on numerous occasions before February 25, 1983, when plaintiff fell, he had to complain about the substance sloshing out of the tank cars because of inadequate closure of the lids. He also testified it was important that a switchman keep his feet clean and see that none of that “stuff” got on his shoes, because mounting and dismounting the cars would be dangerous.

The plaintiff produced a jar of substance which he and some other witness testified “looked like,” or was, the “stuff” that sloshed out of the cars. It was described variously as “soap,” “soap skimmings,” or looking like shaving cream. When the stuff was allowed to settle a long time, it would sink into the ground, or become crusted with dust and dirt on the surface so that it was difficult to see.

The plaintiff climbed up on the running board of a certain tank car and, finding he was unable to set the hand brake, was attempting to climb down. His foot slipped on the running board and he fell backwards to the ground. The running board was a metal grated or cleated board. The engineer saw Daley’s fall and described it: “Mr. Daley mounted the running board of the tank car in an effort to disengage an applied hand brake and I understand the hand brake could not be disengaged and as he was attempting to dismount the tank he was holding onto what we refer to as grab iron with one hand and was reaching for the stirrup, which is a ladder to the car, with his foot and before his foot engaged the ladder, his other foot, which was on the running board, slipped out from under him and caused him to lose his hand hold and [he] fell back to the ground.”

Daley testified that when he climbed up and passed over the running board he did not see the foreign substance; he said, “I was looking at the defective hand brake. I didn’t examine it [the running board] inch by inch.” In effect, he testified he was not looking at the running board at all, because “I was looking for the hand brake.” After he fell, he did not examine his shoes, and he did not examine the running board. He was taken to the hospital. He did not tell anyone that he had slipped on a foreign substance. Several hours later, he returned to the tank car and saw the substance on the running board, a little spot about one-half the size of his hand. But three railroad men were upon the car when he returned to the car, and he conceded on cross-examination that he did not know that these three men had not tracked the substance onto the running board. The substance he saw when he returned to the area was a light tan color, smudgy, overlain with dust as if it had been there a long time, he guesstimated a couple of weeks. The stuff was lighter than the substance exhibited in the jar in court; it was hard and crusty on the outside “and it had been broken” as if it had been stepped in. Another employee (Sheehan) testified that when Daley returned from the hospital later that day before leaving the job, Daley reached over and got something off the car and showed it to Sheehan and made as if to wipe it on Sheehan’s shirt. Sheehan testified he saw “it” on the running board; “it wasn’t too much of it but it looked like it might have been in between the cracks or grating on the running board.”

There was also testimony that the “stuff” had been a frequent presence in the yard for many years, that often complaints were made about the stuff and the fact that Union Camp’s employees should tighten the tank car lids more securely, and it was done; but the substance evidently was still commonly about the area. Other witnesses, particularly Union Camp employees, testified they examined the car after Daley’s fall and did not see a foreign substance, and that at the time Daley never mentioned that he had slipped on something.

The appellant contends there is absolutely no direct, or indirect, evidence that Daley slipped on any “stuff” that frequently sloshed out of the cars and remained on the cars and premises. Yet, the jury decided there was evidence, though entirely circumstantial, that Daley slipped in the oily, soapy stuff that sloshed out of cars, and collected about the place because of appellant’s negligence.

Viewing the evidence in favor of the verdict, we cannot say that as a matter of law or fact it does not lead, at least circumstantially, to the preponderant conclusion that Daley, while exercising ordinary care in the circumstances, slipped on the particular foreign substance, present because of appellant’s negligence, of which substance he had inferior knowledge. All the evidence with reasonable deductions does not demand a finding for the defendant.

This case is not on a footing with Apostol-Athanasiou v. White, 176 Ga. App. 178 (335 SE2d 442), where as a matter of summary judgment, the landowner’s knowledge of the particular presence of dog feces, concealed in the grass that plaintiff was hired to cut, was found not superior to that plaintiff. The jury in this case evidently concluded that Union Camp did have superior constructive knowledge of the continued existence of this substance on its cars and premises, through many complaints over a long period of time; and, that Daley did not have knowledge of this specific substance if it was in a crack of the running board, and did not assume that risk (see Soto v. Roswell Townhomes, 183 Ga. App. 286 (358 SE2d 670)). The standard for directed verdict requires a finding that the evidence demands a particular verdict, and this is difficult to find when the jury has concluded otherwise, for the jury’s view demands we construe the evidence towards the verdict.

It follows that the verdict is not without evidence to support it, and is not contrary to law or justice. It is very circumstantial, because it “only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed.” OCGA § 24-1-1 (4). Nevertheless, it is sufficient to sustain the verdict. Shepherd, supra.

2. The trial court did not commit reversible error in allowing into evidence the “mysterious jar” of soapy material. The plaintiff did not offer it as the exact substance the plaintiff slipped in, which apparently would have been difficult to collect, but the plaintiff presented the stuff in the jar as a substance very like the one frequently found about Union Camp’s yard. The fact that Daley testified he did not know exactly where the substance came from does not make it inadmissible. He testified only to its similarity to the substance found about the yard. It was relevant to show the nature of the foreign substance.

3. Appellant contends the trial court erred in failing to allow it to impeach Daley with a prior inconsistent statement. The fact is that Union Camp was allowed to attempt to earlier impeach Daley’s statement that he did not know where the substance came from or how long it had been present. However, evidently Daley succeeded in convincing the jury his statements on the subject were not inconsistent, or was able to satisfy the jury by reasonable explanation. There was no error committed by the trial court.

4. Union Camp complains of the irrelevance (OCGA § 24-2-1) of the evidence of the substance being on the premises or running board of the tank car after Daley’s fall. This evidence, in the context of this case, was not irrelevant. It was part of the circumstantial evidence tending to prove by inference the common presence of the substance, i.e., the common negligence of the appellant in allowing it to persist. As for its presence soon after Daley’s fall, it was directly relevant to lend proof to its presence a short time before, where he fell.

5. The trial court committed no reversible error in failing to give three jury charges requested by the appellant.

To the extent these requested charges asserted the plaintiff could not recover if he had any knowledge whatsoever of a foreign substance or reason to expect its specific presence, these charges are wrong, because the defendant is not entirely relieved of liability if the plaintiff in some way contributed to his own injury. As for the other charges, the trial court charged on the plaintiff’s necessity to exercise ordinary care, on his duty of avoidance, and as to the principles of superior and equal knowledge of the parties. Where the correct principle of law is charged, though not in the exact form requested (see Locklear v. Morgan, 129 Ga. App. 763, 767 (201 SE2d 163)), the trial court has not committed error.

6. Finally, Union Camp complains of error in allowing Daley’s counsel to set forth figures of Daley’s damages not reduced to present cash value. There is no merit in this contention. The trial court clearly charged the jury as to its duty to reduce the loss of future earnings to present cash value, and told them how to do it. Appellant has not complained of this charge. We must therefore presume the verdict properly considered present cash value.

Decided September 14, 1988

Rehearing dismissed October 13, 1988.

Edward T. Brennan, G. Mason White, for appellant.

Billy E. Moore, Paul R. Bennett, John Wright Jones, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

On Motion for Rehearing.

This motion for rehearing is dismissed by reason of untimeliness.

Motion for rehearing dismissed.


text:
    77029.
    MURAWSKI et al. v. ROLAND WELL DRILLING, INC. et al.
    (374 SE2d 207)
   Birdsong, Chief Judge.

This is an appeal from the order of the trial court, entered after a non-jury trial, in effect, denying appellant-property owners injunctive relief or declaratory judgment against appellee-water suppliers. A central dispute in this case involves the rates that lawfully can be charged for certain water supply services to the households of Robinwood Subdivision which are dependent thereon.

In 1975, appellee Roland Well Drilling, Inc. (hereinafter referred to as Roland) entered into a written contractual agreement with G. W. Robinson. Pursuant to this agreement, appellee Roland undertook to provide water service to a proposed residential subdivision, subsequently known as Robinwood Estates, to be developed by Robinson. This agreement contained other provisions, which in essence provided: (a) that in consideration of Roland constructing the water supply system “in strict accordance with the terms of this contract,” Robinson would for the next 20 years insert a restriction into all deeds conveying any lot in the subdivision, which restriction would bind the grantee to a covenant not to construct a private water supply system or to dig a well on the described property or to allow the described property to be served with water from any source other than Roland; (b) that Robinson did grant to Roland a certain easement within the subdivision for the purpose of constructing and maintaining the mains and lines of the water supply system; (c) that the water supply system would meet certain specifications, including that the water mains would not be less than four inches in diameter and that the pump would be of not less than llh horsepower; and, (d) that when an owner of a lot in the proposed subdivision actually commences to use water from said system, Roland would enter into a written contract with the lot owner agreeing that for 20 years from the date of the contract water would be supplied of a specified quantity and quality and at a specified fee; and, that the fee is not subject to increase except to the extent necessary to cover increased costs to the water supply system for electricity and chemicals used to treat the water.

Contemporaneously or subsequently to this original agreement, Roland and Robinson executed a written contract addendum. The addendum authorized Roland at his discretion to install water meters on lots in the subdivision, and in return bound Roland to charge on a monthly basis each metered lot a minimum charge of $7.75 per month for the first 5,000 gallons of water used; $.50 per 1,000 gallons of water used for the next 5,000 gallons used; and $.40 per 1,000 gallons for any water used in excess of 10,000 gallons. Both the contractual agreement and its addendum were duly recorded in the Land Records of Decatur County.

Approximately seven months later, appellee Roland executed and delivered a trust deed to appellee Decatur Consolidated Water Services, Inc. (hereinafter referred to as Decatur Water). By virtue of this document, appellee Roland conveyed to Decatur Water, as trustee, certain property and rights with respect to the Robinwood Subdivision water system. The trust document pertinently reflects on its face that it was “the intention and purpose of the grantor” to “assure the continuance of the operation and maintenance of [the Robinwood] water system for the benefit of the present and future owners of the properties connected thereto, the mortgages [sic] holding mortgages covering such property, and the Federal Housing Administration and Veterans Administration.” According to the terms of the trust document: (a) a certain described property — apparently constituting the primary Robinwood Subdivision water system facility — was conveyed to the trustee for the asserted benefit of certain Robinwood present and future property owners, together with other water system equipment and facilities and all easements incident thereto; (b) that on the happening of either of two events, relating to the furnishing of water to Robinwood Subdivision by governmental authority or public utility, the trustee would immediately reconvey the trust property to Roland, its successors or assigns; (c) that certain water standards of quality, purity and quantity would be maintained by the grantor Roland; (d) that under certain conditions if the grantor Roland failed to operate and manage the water system, the trustee Decatur Water could do so, and in that event would be subrogated to all rights of the grantor Roland to levy and collect a charge against each customer not in excess of the rates established in the trust deed; (e) that the grantor could install a water meter on each individual property, and “reserves the right to levy and collect a reasonable charge for water furnished and consumed by the occupants of each of the properties connected . . and, (f) that in the event of certain specified beneficiary opposition to any proposed change of rates the matter would be resolved by a specified system of arbitration.

The trust deed was signed by the grantor Roland and the then President of Decatur Water; however, it was not signed by anyone expressly purporting to represent the existing and future Robinwood property owners. The developer, G. W. Robinson, was not a party to the trust deed or to any of its provisions. The parties do not contest that the trust deed agreement subsequently was recorded in the Land Records of Decatur County.

From the date of the first recorded agreement until early March of 1986, water was provided to residences without significant interruption, and without significant disagreement as to terms of any of the above discussed agreements. In March 1986, however, appellee Decatur Water gave the appellants notice of an increase in water rates, prompting the appellants to object and to initiate action seeking declaratory judgment, injunctive relief and other relief deemed appropriate.

The record reflects that Geneva Roland is the president of both Roland and Decatur Water, and that she and her immediate family are the sole shareholders of both businesses. Her testimony also pertinently establishes that the water system was operated with only a 3Yz horsepower pump until the pump was replaced by one of five horsepower, and that a new well with its own five horsepower pump should soon become operational. Further, it is established that while certain of the water mains are of four inches in diameter, certain other water mains are only two inches in diameter. Attorney for the appellant/ plaintiffs, testified that on behalf of his clients he had examined the Land Records of Decatur County; and that the trust deed was not executed by any person who was a predecessor in title to any of the lots in the subdivision, and that the trust deed thereby did not appear in the chain of title to any of the resident lots owned by the plaintiffs.

After entering findings of fact and conclusions of law, the trial judge tacitly declined to grant appellants’ requested relief and pertinently held that “the contracts named herein and all addendums thereto [including the terms of the trust deed agreement] are in full force and effect on all parties to this lawsuit and all parties shall be governed accordingly.” Held:

1. Appellants assert that the trial court erred in its finding of fact regarding the primary purpose of the trust agreement. We disagree. OCGA § 9-11-52 precludes this court from setting aside findings of the trial court, made pursuant thereto, unless the findings are “clearly erroneous.” The trial court’s findings of fact are adequately supported by the record.

2. Appellants further enumerate as error that the trial court erred in its holding that “the contracts named herein and all [addenda] thereto are in full force and effect on all parties to the lawsuit and all parties shall be governed accordingly.”

Considering the operative facts, we are satisfied that the original contractual agreement between Roland and the common grantor to the parties of this suit, G. W. Robinson, together with the addendum thereto, constitutes a valid and binding agreement between them.

Further, considering the operative facts, including the terms of the recorded Robinson and Roland agreements, the restrictive covenant provision in certain former and present Robinwood residents’ deeds, and appellee Roland’s apparent “clean hands” at the time its contract with Robinson was signed, we find that a restrictive covenant has been imposed upon those lots in the Robinwood Subdivision whose chain of title can be traced to the common grantor G. W. Robinson. This restrictive covenant, which clearly touches and concerns the land, is identical in its terms to the provisions therefor contained in the original recorded agreement between Roland and G. W. Robinson. See generally Pindar, 2 Ga. Real Estate Law & Procedure, Ch. 22B; compare Johnson v. Myers, 226 Ga. 23 (172 SE2d 421) with Langenback v. Mays, 207 Ga. 156 (60 SE2d 240); see also 21 CJS Covenants, § 54. Specifically in the development of Robinwood, a restrictive covenant has been intentionally created providing in essence that for a stated 20-year period the grantee shall not construct a private water supply system on the property, dig a well thereon, or allow the property to be served with water from any other source than Roland, its successors or assigns.

We need not determine whether some form of equitable servitude has also been created justly inseparable from the above-restrictive covenant, imposing a burden in the form of charge on the land for the water supplied thereto, arising from and in strict conformity with the clearly interlocking terms of the original agreement and its addendum of which subsequent grantees, including Roland and Decatur Water, allegedly had notice by virtue of the duly recorded provisions of these particular contract documents. See, e.g., Langenback, supra at 158 (2) and (3); Pindar, Ga. Real Estate, supra at § 22-8, n. 2; see also OCGA § 44-2-6. Rather, we find that the binding original contractual agreement and its addendum entered between G. W. Robinson and Roland unequivocally were intended by the parties thereto to be and were in fact a contract made for the benefit of third-party subsequent grantees, particularly with respect to the promises made therein regarding the rates which Roland could charge for water and the subsequent written contracts he would enter concerning those rates with the subsequent grantees of the lots. See, e.g., Southeast Grading v. City of Atlanta, 172 Ga. App. 798 (1) (324 SE2d 776), regarding the intent required in third-party beneficiary contracts. Accordingly, appellant grantees, as third-party beneficiaries, may enforce contracts made for their benefit. OCGA § 9-2-20 (b); Muldawer v. Stribling, 243 Ga. 673, 676 (256 SE2d 357).

Regarding the trust deed agreement, we find that no restrictive covenants binding upon the lots of the appellants have been created thereby. First, the document on its face fails clearly to establish any such restrictions. Restrictions on the use of land must be clearly established and strictly construed. Copelan v. Acree Oil Co., 249 Ga. 276, 278 (290 SE2d 94). “ ‘Doubt as to restrictions and use will be construed in favor of the grantee’ ” upon whose land a particular restriction is sought to be imposed. Id. Secondly, privity of estate is required to create a covenant running with the land. See, e.g., Copelan, supra at 276 (2); Muldawer, supra at 675 and n. 1. Inherent in this concept is the requirement that grantees whose property is sought to be bound have a “common grantor bound by the restrictive covenants.” Pinetree &c. Homeowners Assn. v. First United Lutheran Church, 241 Ga. 228 (2) (244 SE2d 856); Arnovitz v. Murphy Real Estate Co., 164 Ga. 739 (139 SE 530). Thus, “[t]he necessity of privity also requires that the covenant be in the chain of title of a purchaser against whom enforcement is sought.” Pindar, Ga. Real Estate, supra at 22-8. Thirdly, appellee Roland, merely by transferring certain land owned by it to a trustee, appellee Decatur Water, purportedly for the purpose of benefitting appellant property owners who are named as beneficiaries to the trust, could not create any form of a covenant running with the land upon the property placed in trust that would be binding on the appellant property owners. In this situation the appellant property owners did not attain any legal title to the property conveyed in the trust deed to Decatur Water. “Although a different rule may prevail in equity, ordinarily covenants run only with the legal title to lands and tenements.” 21 CJS, Covenants, § 57. Accordingly, “[a]s a general rule, no one is bound by the covenants of a deed who did not execute it and who is not named or referred to therein as being bound by the covenants. Thus, the equitable owner of land is not liable for breach of a covenant contained in a deed executed by the holder of the legal title, where he does not join in the deed.” (Emphasis supplied.) 21 CJS, Covenants, § 86.

It is clear from the record that the appellants did not execute the trust deed. The fact that one former property owner, Edwin “Ed” Brewer, who is not a party to this action, signed the trust deed as President of and on behalf of Decatur Water does not legally constitute an execution of the trust deed on the part of the appellant property owners. While the conduct of Mr. Brewer may have operated to estop him from contesting the enforceability of the trust deed, a question with which we are not here presented, it certainly did not operate to bind any of the appellants, especially as the trust deed on its face reflects that Mr. Brewer was acting in his capacity as a Decatur Water official and not as a legal representative of the other present and future Robinwood property owners.

We have found that the necessary privity of estate does not exist as to appellant property owners regarding the terms of the trust deed. However, in an appropriate circumstance, an equitable servitude can be created, based upon a person taking land with notice of a covenant and thus giving rise to a “privity of conscience.” In these instances, there is no requirement for a “privity of estate.” See generally Johnson v. Myers, supra at 26, citing Rosen v. Wolff, 152 Ga. 578 (110 SE 877); Ga. Real Estate Law, supra at 22-8, n. 2. Assuming, without deciding that some form of equitable servitude could be imposed in this case that would encompass the “burdens” appellees seek to be placed upon the land of water rates and water rate arbitration requirements, as contained in the trust deed, we find such equitable relief not warranted in this case. It is a well-recognized maxim that he who seeks equity must do equity. OCGA § 23-1-10. This maxim is the foundation block for the “clean hands” doctrine. Partain v. Maddox, 227 Ga. 623 (4) (a) (182 SE2d 450). Considering the attendant circumstances, including the nature and totality of Roland’s conduct after contracting with Robinson and the marked difference in bargaining position between the water-needing appellants and the water-possessing appellees, we conclude that neither the equitable remedies of equitable servitude nor equitable estoppel are available to the appellees.

Finally assuming arguendo that appellee Roland retained certain limited power after its contract with Robinson to amend the water rates to be charged Robinwood residents, we find that the provisions contained in the trust deed did not, as to the appellant landowners, constitute binding contractual provisions which could be enforced by the appellees. To create a valid and enforceable contract against appellant property owners, their assent to the alleged contractual terms of the trust deed normally would be required. OCGA § 13-3-1. While under certain conditions, “ ‘[a]ssent to the terms of a contract may be given other than by signatures,’ ” Rogin v. Dimensions South Realty, 153 Ga. App. 75, 77 (264 SE2d 555), we find that this is not such a case. Considering the relationship of the appellants, as evidenced by the face of the trust deed as being mere beneficiaries to the “benefits” thereof, and the clearly unequal bargaining position between the appellees and the appellants (most of whom had not even purchased their property as of the date of execution of the trust deed), we find that the appellants’ subsequent conduct in dealing with appellees did not constitute either an assent to the “burdens” allegedly imposed upon them by the trust deed or a ratification thereof. Moreover, considering the attendant facts, appellants are not estopped to contest the “burdening” terms of the trust deed. Thus, we find that the trial judge erred to the extent that he considered the burdening terms of the trust deed to be enforceable against appellants.

Decided September 15, 1988

Rehearing denied October 13, 1988.

Rikard L. Bridges, for appellants.

Ralph C. Smith, Jr., Paul Fryer, for appellees.

3. In view of the above, appellants’ remaining assignments of error need not be discussed. This case shall be remanded to the trial judge for disposition consistent herewith.

Judgment reversed and case remanded with direction.

Banke, P. J., and Beasley, J., concur.


text:
    76794, 77080.
    OUSELEY v. FOSS; and vice versa.
    (374 SE2d 534)
   Birdsong, Chief Judge.

This is: (a) an appeal from an order granting in part appellee/ cross-appellant’s motion for summary judgment, awarding summary judgment against appellant/cross-appellee as to the issue of damages for lost profits, and (b) a cross-appeal from the trial court’s denial in part of appellee/cross-appellant’s motion for summary judgment regarding the issues of loss of rental income and attorney fees, after concluding that genuine issues of fact existed as to these issues. Each party has forwarded selected portions of the trial record for our consideration.

J. G. Ouseley, appellant/cross-appellee, the principal stockholder of Carter Custom Carpets, contracted to purchase certain business property from Robert Burton, a realtor, who is now deceased and represented by appellee/cross-appellant, Jim Foss. The contract of sale included a provision wherein Robert Burton warranted that, as of the date of the execution of this contract, “there are no written leases involving any tenant on the subject premises, other than Carter Custom Carpets.” This agreement was entered into on December 5, 1981. Either prior or subsequent to executing the contract, Ouseley and R. Burton visited Mr. Spade, the then-owner of Solar Corporation, which was occupying the building along with Ouseley and another tenant. Ouseley informed Spade that he intended to buy the building and required occupancy of Solar’s premises within 60 days thereafter. Spade voiced no objection and stated that he was moving out anyway. At some point, R. Burton orally stated to Ouseley that Solar had no “lease.” At the time the contract was entered, Ouseley believed that R. Burton was the sole owner of the premises, and the contract of sale on its face reflects that the only parties thereto are the individuals R. Burton and Ouseley. Subsequently Ouseley learned, following a title examination of the property, that appellee Arthur A. Burton also owned an undivided interest in the premises. Thereafter, a warranty deed from Robert and Arthur Burton to Ouseley was executed conveying the property. Contemporaneously with the warranty deed, Robert and Arthur Burton executed an affidavit, dated December 24, 1981, wherein they averred that “there are no written leases affecting any of the buildings on the subject premises except for the existing lease with Carter Custom Carpets, Inc. and deponents hereby reaffirm that there are no other written leases in effect on the subject premises. ...”

However, previously on August 11, 1977, Robert Burton had executed a written lease transferring right of possession in a certain portion of the property to Kay Solar Systems, Inc. This lease had a termination date of August 31, 1980; it also contained options for renewal for an additional seven-year period and vested the lessee with the right of assignment. Kay Solar System extended this lease for two years through August 31, 1982. On August 26, 1981, Kay Solar Systems, Inc., assigned the above lease to Solar Corporation of America. This assignment was in writing and with the express consent of Robert Burton who signed the assignment document as “Lessor.” Solar Corporation was given a five-year lease renewal option. Ouseley did not learn of these leasehold documents until after the sale was consummated. Solar Corporation refused to vacate the premises, and Ouseley initiated a lawsuit to regain possession of the premises. Subsequently, Solar Corporation filed for bankruptcy and appellant’s suit was automatically stayed. Ouseley finally obtained possession of the premises from Solar Corporation on May 1, 1984. Ouseley contends that he suffered loss of profit due to appellee/cross-appellant’s breach of contract, because in January 1982, he could have purchased and operated a certain cotton rug-making business on the premises occupied by Solar Corporation. He further contends that the cotton rug business continuously operated at an unspecified amount of profit before appellant executed the sales contract with Robert Burton, during the time appellant was attempting to obtain possession of the premises from Solar Corporation, and after appellant became owner thereof.

I. Case No. 77080

Cross-appellant Jim Foss, as administrator of the estate of Robert Burton, deceased, asserts an enumerated error that the trial court erred in holding that the issues of fact were in dispute in regard to cross-appellee Ouseley’s claim for loss of rental income and attorney fees when it denied cross-appellant/appellee’s motion for summary judgment as to these two issues.

Cross-appellant asserts that Ouseley was required under Georgia law to make an election of remedies and that since he elected not to rescind the contract, the precedent of this court in Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883 (354 SE2d 210) is controlling. In Potomac this court held that with certain exceptions not here applicable “. . . Georgia law recognizes that two actions are equally available to one who was fraudulently induced by misrepresentations into entering a contract. The defrauded party can ‘affirm the contract and sue in contract for breach or he (can) seek to rescind the contract and sue in tort for alleged fraud and deceit. [Cits.]’ However, depending upon which of the two actions is ultimately pursued, the presence of a merger clause in the underlying contract may be determinative as to the successful outcome. If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery.” Id. at 886. This result obtains because “ ‘(w)here the purchaser affirms a contract which contains a merger or disclaimer provision and retains the [purchase], he is estopped from asserting that he relied upon the seller’s misrepresentation and his action for fraud must fail.’ ” Roth v. Bill Heard Chevrolet, 166 Ga. App. 583-584 (305 SE2d 31); see Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272, 273 (306 SE2d 362); see generally Del Mazo v. Sanchez, 186 Ga. App. 120 (366 SE2d 333).

The contract in this case contains a merger clause and Ouseley made an unequivocal voluntary election to treat the contract as valid. Accordingly, Ouseley, by his election, has circumscribed the proof of any averred claim, grounded on fraud in the inducement, in a manner consistent with the above-cited precedent.

In examining appellant/cross-appellee Ouseley’s complaint, however, we are required to construe all pleadings “as to do substantial justice,” Walton v. James & Dean, Inc., 177 Ga. App. 77 (1) (338 SE2d 516). In determining whether a complaint has averred facts stating a claim for relief under which recovery could be obtained, “ [i]t is not necessary that the complaint be perfect in form . . . it is necessary only to place the defendant on notice of the claim against him.” Id. Moreover, “[i]f the pleadings carry out their function of providing reasonable notice and can be supported by evidence at trial, such pleadings, no matter how meager or unskillfully drawn, will be sufficient to carry the action to trial or at least to a hearing on the merits of the case.” Davis & Shulman, Ga. Prac. & Proc. (5th ed.) § 7-4. Appellant/cross-appellee’s complaint places appellee/cross-appellant on notice of an averred claim based on fraud in the inducement; however, even liberally construing the complaint as required by OCGA § 9-11-1, we find that it is insufficient to place appellee/cross-appellant on notice of any claim grounded on breach of contract. We are aware that appellant Ouseley subsequently attempted to characterize his complaint as alleging “a cause of action for a fraudulent breach of contract.” But, the complaint itself, given even the most strained construction in appellant/cross-appellee’s favor, fails to notify appellee/ cross-appellant of any claim grounded in breach of contract. The complaint could have been drafted to aver a claim based on seller’s breach of express warranty, that “[s]eller warrants that, as of the date of the execution of this Contract, there are no written leases involving any tenant on the subject premises, other than Carter Custom Carpets, Inc.,” but liberal examination of the document on its four corners fails to reveal even a modicum of notice of any such claim. Accordingly, we are faced with a situation where the sole claim or claims asserted are anchored on the existence of fraud in the inducement of the contract. In such circumstances appellant/cross-appellee is limited by the rule of law evolving from Potomac Leasing Co. and Roth, supra, as to the type of evidence which is admissible in support of his claim. Viewing the record in this posture, no genuine issue of a material fact exists as to fraud in the inducement. Appellee/cross-appellant was thus entitled to summary judgment.

In view of the above determination, appellee/cross-appellant’s other assertions need not be considered.

II. Case No. 76794

Appellant Ouseley asserts several enumerations of error regarding the trial court’s granting a partial summary judgment to appellee Foss on the damages issue of lost anticipated profits. Our disposition of Case No. 77080 renders the matter moot.

Judgment reversed in Case No. 77080.

Case No. 76794 moot. Banke, P. J., and Beasley, J., concur.

On Motion for Rehearing.

Appellant/cross-appellee asserts that this court has overlooked the doctrine of merger by deed. We find Jordan v. Flynt, 240 Ga. 359 (240 SE2d 858), and the cases cited by appellant/cross-appellee in its motion to be distinguishable from this case.

Decided September 15, 1988

Rehearing denied October 13, 1988

James I. Parker, for appellant.

Larry J. Barkley, for appellee.

Moreover, examination of the sales contact in toto reveals that under the provisions of paragraph 12 thereof, it was the parties manifest intent that the provisions of the sale contract would continue in full force and effect “at the time the sale is consummated,” as it provided for the execution and delivery of such papers as “may be legally necessary to carry out the terms of this Contract” at such time. (Emphasis supplied.) That the parties so intended is further evidenced by the affidavits executed by sellers upon purchaser’s demand, regarding the status of liens and leases on said property, on the same date as the deed was executed. In interpreting this contract provision, this court has applied the cardinal rule of construction by ascertaining the “intention of the parties.” OCGA § 13-2-3. The principle of merger by deed has no application in those situations, as here, where the parties have reserved by the terms of their sales contract, that the provisions thereof are to survive deed execution. Jordan, supra at 362 (1); P.B.R. Enterprises v. Perren, 243 Ga. 280, 282 (253 SE2d 765). Accordingly, we are satisfied that the merger clause of the sales contract has survived the subsequent execution of the deed.

Appellant/cross-appellee’s other assertions of error also are without merit. Accordingly, we adhere to our opinion.

Motion for rehearing denied.


author: Banke, Presiding Judge.

text:
    77038.
    RAGAN v. SMITH.
    (374 SE2d 559)
   Banke, Presiding Judge.

Plaintiff Ragan agreed to sell a house to defendant Smith pursuant to a written contract which gave the defendant the option also to purchase certain household furnishings. The parties subsequently entered into a separate contract whereby the defendant exercised that option, agreeing to purchase the furnishings for $1,529, payable in installments of $50 per month commencing in January of 1987. The defendant did not make any of these payments, and on July 9, 1987, the plaintiff brought the present action against her to recover the entire purchase price. The defendant was served with the suit on that same date.

The defendant did not file a timely answer, and the case went into default. In September of 1987, she moved to open the default, explaining in an affidavit submitted in support of her motion that she had contacted the plaintiff’s attorney after being served with the complaint and had “made a settlement offer which I thought would be accepted.” In a proposed answer which she later submitted, the defendant alleged that the contract for the sale of the furniture contained no acceleration clause and that, consequently, only a portion of the sum sued for was presently due. In addition,:the defendant filed a “Motion to Add Omitted Counterclaim,” alleging that she was entitled to recover actual damages in the amount of $12,000 for certain alleged misrepresentations made by the defendant in connection with the sale of the house and also to set off $250 against the purchase price of the household furnishings based on certain unspecified defects therein. In the affidavit which she submitted in support of her motions to open the default and to add the counterclaims, the defendant offered the following additional explanation for her failure to answer the complaint in a timely manner: “I had only small complaints about the furniture and did not imagine that there was any possibility that this lawsuit could affect my claims and complaints as to the house I purchased from plaintiff.”

Following a hearing, the trial court entered an order opening the default and allowing the counterclaims. The case is now before us pursuant to our grant of the plaintiff’s application for interlocutory appeal. Held:

1. Initially, we reject the defendant’s contention that the trial judge was authorized by OCGA § 9-11-13 (f) to allow the counterclaim even if he was without the discretion to open the default. The late filing of a counterclaim pursuant to Section 13 (f) of the Civil Practice Act “is permitted only as an amendment to pleadings already of file.” Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171, 172 (176 SE2d 604) (1970). Thus, once a case is in default, the defendant may not file responsive pleadings unless and until the default is opened. Cf. Florida East Coast Properties v. Davis, 133 Ga. App. 932, 935 (6) (213 SE2d 79) (1975).

2. The plaintiff first contends that the trial judge erred in opening the default because at the time the order was entered the defendant had not yet paid the accrued costs of the action, as required by OCGA § 9-11-55 (b). See Copeland v. Carter, 247 Ga. 542 (1) (277 SE2d 500) (1981). In his application for appeal, the plaintiff supported this contention by reference to what purported to be a copy of the docket sheet pertaining to the case. However, that docket sheet does not appear in the record transmitted to this court by the trial court. Instead, the only reference to costs which appears in the record before us consists of a written finding made by the trial judge in his order opening the default to the effect that all accrued costs had been paid by the defendant.

The burden is on the party asserting error to show it affirmatively by the record. Hancock v. Oates, 244 Ga. 175, 176 (259 SE2d 437) (1979). Exhibits contained in an appellate brief which do not appear in the record or transcript cannot be considered by this court and afford no basis for reversal. Taylor v. Bentley, 166 Ga. App. 887 (305 SE2d 617) (1983). Coweta Bonding Co. v. Carter, 230 Ga. 585 (198 SE2d 281) (1973); Leathers v. Timex Corp., 174 Ga. App. 430 (330 SE2d 102) (1985). Under the circumstances, the trial court’s finding that the costs had already been paid at the time the order was entered must be presumed correct.

3. The plaintiff contends that the trial court’s order opening the default was additionally in error in that the defendant had not set forth a meritorious defense “under oath.” The statute governing the opening of defaults provides, in part, as follows: “In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.” OCGA § 9-11-55 (b). This court has previously held that the “showing” required by this Code section to be made “under oath” includes the showing of a “meritorious defense.” See Stinson v. Ga. Dept. of Human Resources, 171 Ga. App. 303 (5) (319 SE2d 508) (1984); Global Assoc. v. Pan American Communications, 163 Ga. App. 274 (1) (b) (293 SE2d 481) (1982).

Although, as previously indicated, the defendant submitted an affidavit setting forth the reasons for her failure to file a timely answer to the complaint, she did not specify in that affidavit the nature of her defense to the plaintiff’s claim; and, conversely, although the nature of her defense was disclosed in her proposed answer, the allegations contained therein were not verified nor otherwise supported by sworn testimony.

While acknowledging these deficiencies, the defendant, relying upon the rule that a judgment will be presumed to be valid until the contrary is affirmatively established by the record (see, e.g., Williams v. C & S Nat. Bank, 142 Ga. App. 346, 348 (3) (236 SE2d 16) (1977)), contends that because there is no transcript of the motion hearing, we must presume that the requirement of an oath was met by sworn testimony presented at that hearing. We disagree. There is no indication in the record, either in the trial court’s order or elsewhere, that evidence was in fact received at the motion hearing; and, in a brief submitted to the trial court subsequent to that hearing, defendant’s own counsel characterized it as an “oral argument” hearing. Under such circumstances, the absence of a transcript of the hearing does not lead to any evidentiary presumption supporting the trial court’s order. However, for the following reasons, we nevertheless hold that the trial court was authorized to open the default.

Decided October 13, 1988.

Roger L. Curry, for appellant.

Susan B. Ellis, for appellee.

It is apparent from the briefs filed by the parties in the trial court that there was no dispute between them regarding the terms of the contract sued upon. The contract provided for payment of the purchase price in monthly installments of $50 beginning in January of 1987, and it did not provide for acceleration of the remaining indebtedness in the event a payment was missed. Absent an acceleration clause, of course, the plaintiff was entitled to recover only those installments which were already past due. See Martin v. McLain, 51 Ga. App. 336 (3) (180 SE 510) (1935); Whitley Constr. Co. v. Whitley, 134 Ga. App. 245, 247 (213 SE2d 909) (1975); OCGA § 13-6-14.

In view of the fact that the relevant facts supporting the defense set forth in the proposed answer were, in effect, stipulated by the parties, it would serve no purpose to refuse to allow the default to be opened based merely on the defendant’s failure to establish those facts “under oath.” The “Code section ‘providing for the opening of defaults, should be given a liberal construction, in the promotion of justice and the establishment of the truth; and the discretion of the trial judge in opening a default and permitting the defendant to plead will not be interfered with by this court unless manifestly abused, to the injury of the plaintiff. (Cits.)’ ” Strickland v. Galloway, 111 Ga. App. 683, 685 (143 SE2d 3) (1965). See also Houston v. Lowes of Savannah, 136 Ga. App. 781 (222 SE2d 209) (1975). Given that the complaint in this case dealt on its face with only a relatively small indebtedness, whereas the default affected the defendant’s right to assert a much larger claim which she reasonably viewed as being independent of the claim sued upon, we accordingly hold that the trial court did not abuse its discretion in allowing the default to be opened. In reaching this decision, we express no opinion whatever on the actual merits of the defendant’s counterclaim, which have not yet been ruled on by the trial court.

Judgment affirmed.

Birdsong, C. J., concurs. Beasley, J., concurs in judgment only.


author: Beasley, Judge.

text:
    76617.
    SANDERS v. THE STATE.
    (374 SE2d 542)
   Beasley, Judge.

Defendant, as is his right, brings direct appeal from the order of the trial court overruling his plea of double jeopardy. Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).

According to his brief, on October 30, 1987, he was charged with driving under the influence of alcohol and being a habitual violator. On November 23 he appeared before the Recorder’s Court of Poulan and pled guilty to the misdemeanor offense of driving under the influence. At that time he informed the presiding judge in the presence of the arresting officer that he was charged with being a habitual violator. He was sentenced to a fine of $800 which he paid in December.

Subsequently, the district attorney presented defendant’s charge of habitual violator to the grand jury, which returned a true bill in January. At the time of the arraignment, the district attorney furnished defendant with an incident report which charged defendant with two offenses allegedly committed on the same day — driving under the influence and habitual violator.

Defendant contends that presenting the habitual violator charge and seeking trial on it is barred under the principles of double jeopardy as provided by OCGA §§ 16-1-7 (b) and 16-1-8 (b).

When there are misdemeanor and felony charges arising out of the same conduct and within the jurisdiction of the same court, OCGA § 16-1-7 (b) requires that they be tried together. If not, the State may suffer the consequences of OCGA § 16-1-8 (b). In McCrary v. State, 171 Ga. App. 585 (320 SE2d 567) (1984) [affirmed State v. McCrary, 253 Ga. 747 (325 SE2d 151) (1985)], defendant was charged with two felonies and two misdemeanors which arose out of one course of conduct. Defendant was allowed to plead guilty to the misdemeanors in probate court. This court explained the effect: “The State, by its election (either intentional or by default) to proceed separately as to the misdemeanor offenses, falls before the caveat that when related crimes are prosecuted separately, the more serious crimes should be prosecuted first to avoid the result, as in this case, that a conviction of a lesser crime will act as a bar to the prosecution for the more serious crime.” Id. at 587. Thus, the prosecution in one court prevented the successive prosecution in another court for the felonies.

A prerequisite of the type of statutory double jeopardy claim urged by appellant is knowledge by the proper prosecuting officer, the one at the first proceeding. This means actual, not constructive, knowledge by the prosecuting officer actually handling that proceeding. Baker v. State, 257 Ga. 567, 568 (361 SE2d 808) (1987); Powe v. State, 257 Ga. 563 (361 SE2d 811) (1987).

Decided September 22, 1988

Rehearing denied October 14, 1988

F. Leonard Morris, Jr., for appellant.

David E. Perry, District Attorney, for appellee.

Contrary to defendant’s assertions, the district attorney’s knowledge at the time of presentment would be of no consequence, given the facts as stated in the brief. The vital question pertains to the prosecuting officer’s knowledge of all the charges on November 23 when defendant’s guilty plea was accepted in the recorder’s court. OCGA § 16-1-7 (b) refers to “crimes arising from the same conduct . . . known to the proper prosecuting officer at the time of commencing the prosecution and . . . within the jurisdiction of a single court.” Compare McCannon v. State, 252 Ga. 515, 518 (315 SE2d 413) (1984). When considered all together as a package, the crimes charged at the outset here were only within the jurisdiction of the superior court, Brock v. State, 146 Ga. App. 78, 80 (245 SE2d 442) (1978), and the prosecution of the charges arising from the conduct was commenced in the recorder’s court, which was authorized to transfer all of them to the superior court.

We cannot decide the issue in this case, however, because no record of the hearing below nor of the proceedings in the recorder’s court has been forwarded to this court. There is thus nothing to indicate who assumed the role of prosecuting officer before the recorder’s court and what was known or what was said, because a brief is not a record. What is stated therein provides no factual predicate. Strickland v. State, 184 Ga. App. 185, 187 (361 SE2d 207) (1987); Tommie v. State, 158 Ga. App. 216, 217 (2) (279 SE2d 510) (1981). In the absence of those facts this court cannot determine “who knew what” at the time the prosecution commenced. “[Defendant has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief.” Rogers v. State, 155 Ga. App. 685 (1) (272 SE2d 549) (1980).

In the absence of a contrary showing, we must assume as a matter of law that the evidence supported the findings of the trial court. Moore v. State, 151 Ga. App. 413, 415 (260 SE2d 350) (1979). Based upon the record presented, defendant failed to show reversible error.

Judgment affirmed.

Banke, P. J., concurs. Birdsong, C. J., concurs in the judgment only.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    76633.
    MICHIGAN HOMES, INC. v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    (374 SE2d 323)
   Sognier, Judge.

United States Fidelity & Guaranty Company (USF&G) sought a declaration of its obligations under an agri-business owners insurance policy it issued to Michigan Homes, Inc. d/b/a Oakhill Farms. Michigan Homes, Inc. appeals from the trial court’s order denying its motion for summary judgment and granting USF&G’s motion for summary judgment.

Appellant is the defendant in a suit brought by Bobby Joe Fudge seeking damages for injuries caused to his real property due to appellant’s discharge of raw cattle sewage into a creek which flows from appellant’s property through Fudge’s property. Appellee brought its declaratory judgment action contending that exclusionary language in the policy eliminated any obligations it had on behalf of its insured, appellant. The language in issue provides in the “exclusions” section: “Coverage C — Liability and Coverage D — Medical Payments to Others do not apply to bodily injury or property damage ... 9. arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere of any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental, or to bodily injury or property damage caused by or arising out of: a. smoke resulting from the normal and usual practices of farming or agricultural pursuits at the insured location, provided that such practices or pursuits are not in violation of any ordinance or law, or b. the application of farm chemicals at the insured location provided the application is usual and incidental to normal farming operations and is not in violation of the law.” (Boldface emphasis in original deleted.)

Appellee contends the policy language can be construed only as providing that coverage is excluded as to property damage arising out of the discharge of waste materials “into or upon [1] land, [2] the atmosphere of any watercourse or [3] [any] body of water.” Since the waste material was discharged into a body of water, appellee asserts all coverage is excluded and therefore the trial court’s grant of summary judgment in its favor and against appellant was proper. Appellant, on the other hand, contends the policy language can be construed only as providing that coverage is excluded as to property damage arising out of the discharge of waste materials “into or upon [1] land, [or] [2] the atmosphere of any watercourse or body of water.” Since the waste material was not discharged into or upon land or the atmosphere, appellant asserts that the exclusion is not applicable and thus the trial court erred by denying summary judgment in favor of it and granting appellee’s motion. Alternately, appellant argues that the language remains ambiguous after the application of all rules of construction and thus summary judgment was inappropriate for both parties.

“ ‘Insurance is a matter of contract and it is contract law rather than the underlying motives of the contracting parties that is ultimately controlling. [Cit.]’ [Cit.] ‘The existence or non-existence of an ambiguity is itself a question of law for the court. [Cit.] If the court determines that there is an ambiguity, this does not automatically give rise to a jury question, however. [Cit.] At this point it becomes the duty of the court to attempt to resolve the ambiguity by applying the rules of construction set forth in OCGA § 13-2-2. [Cits.] It is only when the ambiguity remains after the statutory rules have been applied that the issue becomes one for the jury. [Cits.] . . . Moreover, in applying [these rules], we have consistently held that an insurance contract is to be strictly construed against the insurer and in favor of the insured. [Cits.] Our courts have further held that the insurer, having affirmatively expressed coverage in broad promissory terms, has a duty to define any limitations or exclusions clearly and explicitly. [Cit.]’. . . [Cit.]” MAG Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169, 173 (367 SE2d 63) (1988).

Turning to the language in question, to interpret the policy as proposed by appellant would be to hold that coverage was excluded when waste material was discharged either upon land or into the atmosphere over any water, be it watercourse or a body of water. To interpret the policy as proposed by appellee would be to hold that coverage was excluded when waste material was discharged upon land or into water, but only when the water is a body of water and not when the water is in the form of a watercourse, since only the atmosphere of any watercourse, the final item on the list, is excluded. Although appellee valiantly asserts in its brief that “it is clear that the word ‘atmosphere’ entails the entire ecosystem of Mr. Fudge’s creek water,” the plain language used in the policy provision does not support this argument, leaving appellee with the more absurd of the two possible interpretations.

Although neither party raised this argument, we note that a more reasonable interpretation of the policy language than that posed by the parties would seem to result if the preposition “of,” posited between “atmosphere” and “any watercourse,” was deemed to be a typographical error for the coordinating conjunction “or,” so that the policy language would read as excluding coverage as to property damage arising out of the discharge of waste materials “into or upon land, the atmosphere o[r] any watercourse or body of water.” However, “ ‘[i]t is the duty of courts to construe and enforce contracts as made,

and not to make them for the parties.’ [Cit.] The law will not make a contract for the parties which is different from the contract which was executed by them. [Cits.] Relief is not available on the basis of a unilateral mistake in the absence of fraud or inequitable conduct or other special circumstances. [Cit.] Such relief is definitely unavailable here where the mistake or negligence is attributable to the employee of the [insurance company]. [Cits.]” Sellers v. ALCO Fin., 130 Ga. App. 769, 770-771 (204 SE2d 478) (1974). See also MAG Mut. Ins. Co., supra at 174 (2).

“ Tn construing an insurance policy, “(t)he test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.” [Cit.] “Where a provision in a policy is susceptible to two or more constructions, the courts will adopt that construction which is most favorable to the insured. [Cit.]” [Cits.]’ [Cit.]” U. S. Fire Ins. Co. v. Hilde, 172 Ga. App. 161, 163 (2) (322 SE2d 285) (1984). Applying these rules of construction to the policy drafted by appellee, we agree with appellant that the language in the policy excluded coverage for property damage when waste material was discharged onto land or into the atmosphere over watercourses or bodies of water. Since the evidence is uncontroverted that the waste materials allegedly discharged by appellant were discharged not onto land or into the atmosphere of any water, but into the water itself, the exclusionary language in the policy was not applicable. Thus, the trial court erred by granting summary judgment in favor of appellee and by denying the motion for summary judgment made by appellant.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Carley and Beasley, JJ., concur in the judgment only. Deen, P. J., dissents.

Deen, Presiding Judge,

dissenting.

Over one hundred years ago, Chief Justice Bleckley proclaimed that “we may safely say that the reasoning of the law is never absurd.” Knox v. Bates & Co., 79 Ga. 425, 427 (1887). The majority opinion suggests that the safety of that proclamation is presently in jeopardy.

As suggested by the majority opinion, the obvious intent of the exclusion under consideration was to exclude coverage for release of waste materials into or upon land, into the atmosphere, and into any watercourse or body of water, an intent that was side-tracked by an apparent typographical error. While categorizing both of the literal but contrary constructions favored by the appellant and the appellee as absurd, the majority opinion then endorses the construction that strays furthest from the real intent of the exclusion. While there is a general rule of construction of contracts that if a policy provision is susceptible of two or more constructions, the court should adopt that construction which is most favorable to the insured, it should also be remembered that the cardinal rule is to ascertain and effectuate the intention of the parties. Brooke v. Phillips Petroleum Co., 113 Ga. App. 742 (149 SE2d 511) (1966). It is the construction advanced by the appellee, not the appellant, that accomplishes that goal. If this court only has the choice of selecting one absurdity over another, I favor the choice that at least effectuates the obvious purpose contemplated by the exclusion.

Decided September 6, 1988

Rehearing denied October 14, 1988

R. Kelly Raulerson, for appellant.

Stephen S. Goss, Billy C. Mathis, Jr., for appellee.

Accordingly, I must respectfully dissent.


text:
    76866.
    WILSON v. THE STATE.
    (374 SE2d 325)
   Banke, Presiding Judge.

The appellant was charged with two counts of child molestation and, alternatively, two counts of simply battery. He was acquitted of one of the child molestation counts and convicted on the remaining three counts of the indictment. However, one of the simple battery convictions was subsequently merged with the child molestation conviction during sentencing. He brings this appeal from the denial of his motion for new trial.

The evidence established that on August 15, 1986, the appellant escorted four children, including the then eight-year-old daughter of a close family friend, to a movie. During the movie, the eight-year-old became cold and asked to sit on the appellant’s lap. While she was sitting there, he allegedly placed his hand inside her panties, touched her vagina, and induced her to touch his penis. The child disclosed the incident to her mother the next evening, and shortly thereafter the matter was reported to the Department of Family and Children Services. Subsequently, the appellant’s niece, who was nine years old at the time of trial, disclosed that during Christmas of 1985 the appellant had invited her to sit on his lap and had then reached beneath her clothing and touched her breasts and vagina. The jury found the appellant guilty of both child molestation and simple battery with regard to the friend’s daughter but only of simple battery with regard to the incident involving his niece. Held:

1. The appellant enumerates as error the refusal of the trial court to grant his motion to sever the charges involving the first alleged victim from those involving the other.

“In Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975), [the Supreme C]ourt adopted ABA Standards of severance which provide that a defendant is entitled to severance if offenses are joined simply because they are similar in nature.” Cooper v. State, 253 Ga. 736 (3) (325 SE2d 137) (1985). However, “[o]nly when the offenses have been joined solely because they are of the same or similar character shall the accused have a right to severance of the offenses. [Cits.]” Jordan v. State, 172 Ga. App. 496 (1) (323 SE2d 657) (1984). Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind. Cooper v. State, supra at 737. “ ‘Where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice. [Cits.]’ ” Jordan v. State, supra at 497. “[S]everence in this particular kind of circumstance lies within the sound discretion of the trial judge. . . .” Dingler, supra, 233 Ga. at 463.

In the present case, the trial judge correctly concluded that the two offenses were so similar that, even if severed, evidence of each would be admissible at the trial of the other; and he consequently denied the severance “[t]o avoid unnecessary trauma to victim/witnesses of tender years whose testimony was admissible in either case. . . We find no abuse of discretion under these circumstances. Compare Banks v. State, 185 Ga. App. 851 (1) (366 SE2d 228) (1988) (holding that evidence of prior criminal misconduct which would otherwise be admissible is rendered inadmissible where the defendant has been tried and acquitted of the alleged prior offense).

2. On direct examination by the state, an expert qualified in the fields of child psychology and child sexual abuse testified that, after undergoing certain testing and evaluation procedures, one of the alleged victims had been diagnosed as “sexually abused.” Counsel for the appellant immediately asked to make a motion outside the presence of the jury, whereupon, in anticipation of a motion for mistrial, the state conceded that the testimony was improper and requested the trial court to instruct the jury to disregard it. The trial court then gave the following curative instruction: “I’m going to give you some instructions at this time that I require you to follow. The witness had testified to the ultimate fact question; that is, the question that you and you alone must determine. You will ignore and remove from your mind and will not consider in your deliberations any part of the last question and answer that was asked of this witness. If you cannot do that, I want you to let me know right now. Is there anyone who cannot follow those instructions?” The record reflects that each of the jurors thereupon indicated his or her ability to comply with the court’s request. The appellant enumerates as error the denial of his subsequent motion for mistrial.

Decided September 6, 1988

Rehearing denied October 14, 1988

Garland B. Cook, Jr., for appellant.

Robert E. Wilson, District Attorney, Nelly F. Withers, Thomas Morgan III, Barbara B. Conroy, Assistant District Attorneys, for appellee.

There is conflicting authority as to whether such expert testimony is admissible. Such cases as State v. Butler, 256 Ga. 448 (2) (349 SE2d 684) (1986); Grayer v. State, 181 Ga. App. 845 (2) (354 SE2d 191) (1987); and Pegg v. State, 183 Ga. App. 668 (3) (359 SE2d 678) (1987), hold that it is, while in Allison v. State, 256 Ga. 851 (6) (353 SE2d 805) (1987), the Supreme Court appeared to express the opinion that it is not. In either event, however, we conclude that the trial court did not abuse its discretion in denying the motion for mistrial in the present case.

In Sabel v. State, 250 Ga. 640 (5), 644 (300 SE2d 663) (1983), overruled on other grounds in Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984), the Supreme Court enumerated certain circumstances to be considered in determining whether the possible prejudice resulting from improper testimony can be cured so as to avoid the necessity of granting a mistrial. These include “the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” Sabel v. State, supra at 644. In the present case, expert testimony was already properly before the jury to the effect that the victim in question exhibited behavorial characteristics typically exhibited by sexually abused children. In the context of this evidence and of the strong curative instructions given to the jury by the court, we hold that the trial court did not abuse its discretion in denying the motion for mistrial.

3. In reliance on Baker v. State, 183 Ga. App. 100 (357 SE2d 896) (1987), the appellant contends that the trial court erroneously required him to pay restitution to the victims in the amount of $6,660 without first considering the factors enumerated in OCGA § 17-14-10. Based on our examination of the transcript, we find this contention to be without merit. Baker, supra, is inapposite in that no hearing whatever was held in that case, with the result that the statutory conditions could not have been considered.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Benham, Judge.

text:
    76445.
    BACON v. THE STATE.
    (374 SE2d 351)
   Benham, Judge.

Appellant was convicted of two counts of sale of marijuana. On appeal, he contests the sufficiency of the evidence and complains of error in sentencing.

1. Appellant admitted at trial that he sold the marijuana to an undercover agent, but pleaded entrapment. On appeal, he contends that the evidence was insufficient because the State did not rebut his evidence establishing entrapment.

The State’s evidence was that an undercover agent went to appellant’s home, accompanied by a confidential informant who knew appellant, and asked appellant whether he had any cocaine or marijuana to sell. The agent testified that appellant said he had no cocaine, but that he had “some twenty-cent pieces” of marijuana, and that appellant sold him a bag of marijuana for $20. The same agent testified that he returned to appellant’s home on another occasion and repeated the conversation with appellant, buying 2 bags that time for $40. The agent denied that he heard the confidential informant plead with appellant or prevail upon their long friendship.

Appellant testified that on both occasions he told the agent and the informant that he was not selling, but that the informant begged him, in regard for their long friendship, to sell some, so he did.

“ ‘In Georgia, the entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. [Cits.]’

“An agent of the Georgia Bureau of Investigation testified that, while accompanied by a confidential informant, he had purchased [marijuana] from appellant. Under the agent’s testimony, he had merely afforded appellant the opportunity to commit the offense and appellant had readily availed himself of that opportunity. Appellant testified in his own defense. Appellant’s version of the events differed from the agent’s and, as to his predisposition to commit the crime, was exculpatory. Because the confidential informant was never called as a witness for the State to rebut appellant’s testimony, he ‘claims that the evidence demanded a finding of entrapment. Contrary to that contention, however, the appellant’s testimony concerning his lack of predisposition hardly went uncontradicted. . . . The appellant’s testimony certainly raised the defense of entrapment, but it did not demand a finding of such. In this case, the issue of whether the State impermissibly encouraged the appellant to evil was properly submitted to the jury, and the evidence authorized a rational trier of fact to find beyond a reasonable doubt that the appellant had not been entrapped.’ [Cits.] After a review of the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Lawson v. State, 184 Ga. App. 204 (361 SE2d 210) (1987).

2. The first complaint appellant asserts with regard to sentencing is that the notice of intent to introduce a prior conviction in aggravation was not timely served. The record and the transcript of the sentencing hearing demonstrate that the notice was filed and served on defense counsel on the day of trial prior to the commencement of the trial. The State relies on Hill v. State, 250 Ga. 277 (6) (295 SE2d 518) (1982), where the notice was also served on the day of trial, and the Supreme Court found it timely, pointing out that OCGA § 17-10-2 (a) “states that ‘only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible.’ Here, the notice was provided prior to trial. [Cit.] Appellant does not contend that the conviction was not his, that he was not represented by counsel, or that the conviction was inadmissible for any other reason.”

A significant difference between this case and Hill is that the appellant here did contend at trial that he was not represented at the previous trial by counsel. Defense counsel objected to the admission of the conviction because he had not had time to find witnesses on the issues raised and because he was not familiar with the circumstances of the prior conviction. Although, for the reasons stated below, we do not find the procedure followed in this case to be harmful error, we cannot approve of waiting until the day of trial to give notice to defense counsel that the State intends to put on evidence during the sentencing hearing of a prior conviction. “The purpose of [OCGA § 17-10-2 (a)] is to allow a defendant to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.” Herring v. State, 238 Ga. 288 (4) (232 SE2d 826) (1977). To permit the State, as a tactical maneuver, to erode a defendant’s right to an opportunity to prepare for trial by withholding notice of its intent to submit evidence of prior convictions runs contrary to the stated purpose of the Code section. The record in this case does not show conclusively whether the notice was necessarily last-minute or not; if it was not, it was improper.

Decided October 14, 1988.

Richard D. Phillips, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

However, as mentioned above, there are valid reasons for finding that there was no reversible error in permitting the evidence to be admitted in this case. The first reason is procedural: appellant did not request a continuance, the obvious remedy for a violation of a statute the purpose of which is to give the defense an opportunity to prepare. The second reason is that the circumstance under which appellant went to trial without an attorney in 1978 was the subject of this court’s review in Bacon v. State, 151 Ga. App. 840 (2) (262 SE2d 198) (1979): appellant and his codefendant in that case “were free on bond for six months prior to trial, had been declared non-indigent, did not pay their initial attorney who withdrew from representation for that reason, were told by the trial judge two weeks before trial to get a lawyer as they were going to be tried, and waited until two days before trial to employ a second attorney who, for medical reasons, was incapable of participating in the trial. ‘If the accused has means to employ counsel and is out on bond, and has opportunity to secure counsel, and neglects or refuses to do so, the court is under no obligation or duty to appoint counsel to represent him.’ [Cit.]” Under these circumstances, we agree with the trial court in this case that appellant had waived his right to counsel in the prior prosecution and that the conviction was properly considered in aggravation of appellant’s sentence.

3. Finally, appellant complains that the trial court, in deciding appellant’s sentence, relied on rumor which was not supported by the evidence. Our review of the record, however, shows the trial court merely observing, in the form of inferences from the evidence and common sense, that appellant was not the solid citizen he wanted the court to believe he was, but was in fact a drug dealer. There being no attribution of that observation to any source other than the trial court’s reasoning, we find no support for appellant’s contention of reliance on rumors.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    76472.
    BROWN v. THE STATE.
    (375 SE2d 146)
   Benham, Judge.

Appellant was convicted of voluntary manslaughter and sentenced to 15 years in the penitentiary. His attorney filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967). In accordance with Anders, counsel has filed a brief raising points of law which he considered could arguably support an appeal. We are in agreement with counsel that none of the points raised, though persuasively presented, has any merit. We have therefore granted the motion to withdraw. In addition, we have fully examined the record and transcript to determine independently if there are any meritorious errors of law. We have found none. We are satisfied that the evidence produced at trial was sufficient to authorize any rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

Decided October 14, 1988.

David E. Perry, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    76505, 76506.
    LANDERS et al. v. HERITAGE BANK; and vice versa.
    (374 SE2d 353)
   Pope, Judge.

Nellie K. Landers and her husband Guy A. Landers opened a checking account in 1978 with Heritage Bank. Landers, who had retired after 22 years of active service with the U. S. Air Force, received monthly retirement benefits which were wire transferred by the Air Force into the joint checking account. Landers died on October 28, 1981, and Mrs. Landers promptly reported his death both to the Air Force and to the bank. On October 31, 1981, Mrs. Landers and her son, Guy A. Landers, Jr., met with an officer of Heritage Bank and arranged to delete Landers’ name from the joint checking account and to substitute Guy A. Landers, Jr.’s name, without changing the account number. However, the bank neglected to notify the Air Force of these changes as required by federal regulation (31 CFR § 210 (e) and (h) (1)).

The Air Force continued to wire transfer funds which Mrs. Landers assumed to be widow survivor benefits, or other such benefits appropriately paid to her after her husband’s death, into this account until October 1984. In January of 1985, the Air Force sent the bank a “Notice of Accountability,” alleging that the bank owed the government for payments received into the bank account after Landers’ death in the amount of $24,173.66. Upon receipt of this notification from the Air Force the bank, without sending the Landerses a copy of the Notice of Accountability as required by 31 CFR § 210.11, or any other prior notice, debited $4,399.54 from their checking account on January 22, 1985 and $122 on March 3, 1985. After the initial debit the bank telephoned Mrs. Landers informing her that she owed the bank $19,652.12. Mrs. Landers responded that she no longer had the money.

In November of 1985, after the Air Force debited the bank’s Federal Reserve account for the amount of $19,774.12, the bank filed suit against Mrs. Landers and Landers, Jr., for the difference between the amount the bank paid the Air Force and the amount retrieved from the Landers’ account. The Landerses answered and filed a counterclaim for $4,521.54, representing the total amount seized from their account. In response to a motion for summary judgment filed by the bank, the Landerses sought dismissal of the complaint and an award of summary judgment on their counterclaim. The trial court granted the bank summary judgment, from which the Landerses appeal, and also awarded partial summary judgment to the Landerses for $4,521.54, which is the subject of the bank’s cross-appeal. Held:

The bank advanced four theories of recovery: (1) that under the Uniform Commercial Code it had the right to revoke and charge back to a customer’s account those checks it was unable to collect upon which it had extended provisional credit (OCGA § 11-4-212); (2) that it was also authorized by the Uniform Commercial Code to charge against a customer’s account any item which was otherwise properly payable from the account even though the charge created an overdraft (OCGA § 11-4-401); (3) that the language on its signature card created a contractual right in the bank to charge any indebtedness of a depositor to the bank against that account; and (4) that the Landerses were unjustly enriched and profited to the bank’s detriment because the Air Force was empowered to debit the bank’s Federal Reserve account for the full amount of the money incorrectly deposited in their account.

Neither the Uniform Commercial Code provisions nor the signature card were effective to relieve the bank in the present situation. The Landerses had no contractual indebtedness to the bank, nor did they cause any overdraft, and the action taken by the bank to charge back against the account was not timely under OCGA § 11-4-301 (1). Moreover, although it is not stated in the order appealed from, since the trial court found the seizure of funds from the Landers account to be wrongful, it must be assumed that the judgment against the Landerses was based solely on the theory of unjust enrichment. Thus, notwithstanding that the bank’s complaint alleged that the Landerses were obligated to it as the result of an overdrawn checking account, the action was one for the recovery of voluntary payments, or money had and received, which is governed by OCGA § 13-1-13.

“ ‘An action for money had and received lies in all cases where another has received money which the plaintiff ex aequo et bono is entitled to recover and which the defendant is not entitled to retain. (Cit.). Although legal in form, being an action in implied assumpsit, it is founded on the equitable principle that no one ought to unjustly enrich himself at the expense of another, and it is a substitute for a suit in equity. (Cit.)’ [Cits.] Due to the nature and origin of the cause of action, however, ‘ “(t)he equitable right to restitution from one unjustly enriched at another’s expense is terminated or diminished if circumstances have so changed that it would be inequitable to require full restitution.” ’ [Cits.]” (Indention omitted.) Raccuglia v. Paine Webber, Inc., 180 Ga. App. 570, 571-72 (1) (349 SE2d 803) (1986). Therefore, in such an action, “the plaintiff generally can recover a payment mistakenly made when that mistake was caused by his lack of diligence or his negligence in ascertaining the true facts and the other party would not be prejudiced by refunding the payment — subject to a weighing of the equities between the parties by the trier of fact.” Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 406 (349 SE2d 368) (1986).

“The finding of the trial court thus amounts to a holding that if it is undisputed a payment was a mistake, the recipient must give it back, and his having spent it is not a ‘prejudice’ which the law will protect. This is not exactly the law. . . . OCGA § 13-1-13 . . . provides that a payment made through ignorance of the law or where all the facts are known and no artifice, deception, or fraudulent practice used by the other party, ‘are deemed voluntary and cannot be recovered’ unless it was forced by other named circumstances. (Emphasis supplied.) This law is amplified, but not restricted, by OCGA § 23-2-32 (a), to the effect that negligence of the complaining party, ‘that want of reasonable prudence, the absence of which would be a violation of legal duty,’ will prevent recovery by equity. But an exception is given by paragraph (b) of § 23-2-32, in that ‘(r)elief may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.’ Gulf Life Ins. Co., supra, p. 403.” Graham v. Hogan, 185 Ga. App. 842 (1) (366 SE2d 219) (1988).

There are genuine issues of material fact involved here in regard to how much, or if indeed, the Air Force overpaid Mrs. Landers when the benefits continued after her husband’s death. Moreover, there has been no weighing of the equities as to whether the bank’s negligence in failing to notify the Air Force after Landers’ death precluded its claim, and whether Mrs. Landers experienced a change of position whereby she would be unduly prejudiced by having to repay the bank; or, on the other hand, if Mrs. Landers spent money which she knew or should have known she had received by mistake, that she might not have acted in good faith and would be obligated to return it to the bank. Consequently, we cannot agree that either party was entitled to recover the full amount sought as a matter of law, and conclude that the trial court erred in granting summary judgment to the bank and partial summary judgment to the Landerses. Graham, supra; Raccuglia, supra.

Decided October 14, 1988.

Frank W. Virgin, for appellants.

Mickey G. Roberts, for appellee.

Judgments reversed.

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


text:
    76697.
    ROGERS v. THE STATE.
    (374 SE2d 562)
   Benham, Judge.

Convicted of simple battery, appellant complains on appeal of the State’s failure to comply with discovery requests and contends that the evidence was insufficient to convict.

1. After the jury was empaneled and sworn, defense counsel objected “to the trial proceeding,” offering as a ground for his objection that the State had not provided a copy of the accusation and a list of witnesses as appellant had timely demanded. The State requested a continuance, but the trial court refused after ascertaining that there was to be only one witness for the State, the victim, whose testimony had already been heard by the defense at the preliminary hearing, and that the State did not have any statements from the defendant to introduce.

This case is remarkably similar to and is controlled by Willis v. State, 183 Ga. App. 408 (359 SE2d 194) (1987), in which the same trial judge dealt with the same problem in another simple battery prosecution in which the same trial attorneys were involved. The evidence in this case was very simple and straightforward, and we find no reasonable possibility that the failure to comply with appellant’s discovery demand might have contributed to the conviction. Therefore, no ground for reversal has been established.

We note, however, that the lack of harm is due to the extreme simplicity of this case and caution that this case should not be advanced as authority for the proposition that failures to comply with discovery requests are generally harmless. Furthermore, the “open file” policy on which the State relied in part to satisfy discovery demands is not sufficient: the indictment or accusation and, when demanded, a list of witnesses must be served on the defendant, not just made available. Driver v. State, 188 Ga. App. 301 (371 SE2d 841) (1988).

Decided October 14, 1988.

Verna L. Smith, for appellant.

Carl A. Veline, Jr., Solicitor, Kelly R. Burke, Assistant Solicitor, for appellee.

2. Appellant’s other enumeration of error is that the evidence was not sufficient to support the verdict. We disagree.

The victim, a podiatrist, testified that he had examined appellant’s then-fiancee’s foot on the day of the offense; that appellant and the patient returned to his office that afternoon; that while he was waiting for the patient to return from the rest room, appellant entered the treatment room, asked the victim about his earlier contact with the patient, then swung his fist at the victim, but missed; that he swung at appellant with equal lack of results; that appellant then wrestled him to the floor and beat his face.

Appellant testified that when he and his fiancee left the victim’s office that morning, she was upset; that over a period of hours, he managed to get from her an account of her examination by the victim; that she accused the victim of forcing her to commit a sexual act; that he returned to the victim’s office to confront him; that the victim looked afraid and then attacked appellant when he asked about the victim’s earlier conduct; and that appellant beat the victim in self-defense.

Since the two main witnesses testified in direct opposition to each other, the main issue to be decided was credibility. The jury resolved that against appellant. We find the evidence sufficient to authorize any rational trier of fact to find appellant guilty of simple battery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jackson v. State, 182 Ga. App. 826 (357 SE2d 143) (1987).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    76743.
    GRIFFITH v. THE STATE.
    (374 SE2d 359)
   Benham, Judge.

Appellant was indicted for child molestation, but was convicted only of simple battery. His sole ground for appeal is the denial of his motion in arrest of judgment, in which he contended that since simple battery is not a lesser included offense of child molestation, and he was not indicted for simple battery, the conviction was not authorized. The record shows that the charge on simple battery was one of the requests to charge that appellant submitted to the trial court. When the issue was discussed at the charge conference, the State indicated some reluctance regarding the giving of that charge, but the trial court said that since a “specific request” had been made by the defense to give the charge, the court would do so.

Decided October 14, 1988.

Roger L. Curry, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

While it is true that simple battery is not, as a matter of law, a lesser crime included in the crime of child molestation (State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976)), it is equally true that induced error cannot be complained of on appeal. Cole v. State, 156 Ga. App. 6 (5) (274 SE2d 64) (1980). This is a case of induced error; therefore, we affirm the judgment.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.