author: Sognier, Judge. Deen, Presiding Judge,

text:
    77253.
    77254.
    JARRETT et al. v. BUTTS et al. BALDWIN COUNTY BOARD OF EDUCATION et al. v. BUTTS et al.
    (379 SE2d 583)
   Sognier, Judge.

Ernest and Ernestine Butts, individually and as next friends of their daughter Cynthia Gay Butts, brought suit against George Jarrett, the Baldwin County Board of Education and its members in their official capacities, and county school superintendent William Gardner, alleging claims of invasion of privacy, assault and battery, and violation of 42 USC § 1983. We granted Jarrett’s interlocutory appeal from the denial of his motion for summary judgment in Case No. 77253, and the remaining defendants’ interlocutory appeal from the denial of their summary judgment motion in Case No. 77254.

Construed favorably to appellees as respondents below, the record reveals that appellant Jarrett, a teacher at Boddie Junior High, is an amateur photographer who often photographs his students at school functions and athletic events and for the school yearbook. On March 26, 1986, he approached Cynthia Butts, appellees’ daughter, then a fourteen-year-old student, at school and indicated he wanted to photograph her because of her distinctive attire and decoratively painted fingernails. She testified by affidavit that after Jarrett’s repeated requests, she “reluctantly allowed him to take some pictures of my fingernails,” but that he then “ordered” her to, pose for several other pictures, using a “loud, intimidating and forceful manner,” and in so doing touched her wrists and hair. Jarrett denied forcing or intimidating appellees’ daughter, and testified in his affidavit that he touched her only as necessary for positioning her hands prior to photographing them.

1. Appellees have moved to dismiss Jarrett’s appeal on the ground that Jarrett did not file his enumeration of errors within twenty days after his case was docketed as required by OCGA § 5-6-40 and Court of Appeals Rule 27. A review of the record discloses that Jarrett timely filed his brief, which included his enumeration of errors, on June 30, 1988, but did not file a separate enumeration of errors until July 7th. Belated filing of the separate enumeration is not a basis for dismissal of an appeal, see OCGA § 5-6-48 (b), especially where, as here, the enumeration of errors was included in appellant’s brief and thus timely filed therewith. Accordingly, appellees’ motion to dismiss is denied.

2. Appellant Jarrett first enumerates as error the denial of his motion for summary judgment as to appellees’ claim for tortious invasion of privacy on the grounds that the undisputed evidence does not show a physical intrusion or an appropriation of appellees’ daughter’s likeness for appellant’s advantage.

Under Georgia law, the concept of invasion of privacy encompasses four loosely related but distinct torts, but appellees acknowledge their claim raises only two: “intrusion upon the plaintiff’s seclusion or solitude, or into [her] private affairs,” and “appropriation for the defendant’s advantage of the plaintiff’s name and likeness.” Sun v. Langston, 170 Ga. App. 60, 61 (2) (316 SE2d 172) (1984). Reviewing the undisputed evidence presented, we conclude appellees’ daughter was not subjected to a physical intrusion analogous to a trespass, as is required to recover for an intrusion upon seclusion. See Kobeck v. Nabisco, Inc., 166 Ga. App. 652, 654 (2) (305 SE2d 183) (1983). The photographs were taken in the classroom and hallway of a school building during regular school hours when other students were present, and did not reveal any aspect of Cynthia Butts’ person that was not readily visible to anyone who saw her during the day.

Similarly, the undisputed evidence discloses that no wrongful appropriation occurred, as Jarrett received nothing of value for the photographs, and that there was no use of appellees’ daughter’s likeness to his advantage, as the photographs were never sold, published, or publicly displayed. See Williams v. Church’s Fried Chicken, 158 Ga. App. 26, 32 (279 SE2d 465) (1981). Accordingly, appellant Jarrett was entitled to summary judgment on appellees’ tortious invasion of privacy claim. Id. at 31-32 (5).

3. The appellants in Case No. 77254 (hereinafter collectively referred to as the “school system appellants”) also contend the trial court erred by denying their summary judgment motion on the invasion of privacy claim. Appellees made no allegations and introduced no evidence against these appellants other than the evidence regarding Jarrett’s actions. Pretermitting the question of whether the school system appellants are entitled to the defenses of either sovereign or official immunity as to this claim because of the exclusions contained in their liability insurance policies, we hold that the trial court erred by denying their motion for summary judgment on the privacy claim for the reasons discussed in Division 2, supra.

4. Appellant Jarrett next asserts the trial court erred by denying his motion for summary judgment on appellees’ claim for assault and battery. Although there is no allegation or evidence of reasonable apprehension of “violent injury from the unlawful act of [Jarrett],” Quaker City Life Ins. Co. v. Sutson, 102 Ga. App. 53, 57 (115 SE2d 699) (1960), “ ‘[i]n the interest of one’s right of inviolability of one’s person, any unlawful touching is a physical injury to the person and is actionable.’ [Cit.]” Irwin v. Arrendale, 117 Ga. App. 1, 5 (4) (159 SE2d 719) (1967). Thus, even the minimal touching alleged in this case can support a cause of action for assault and battery. The record reveals that factual questions exist regarding whether appellees’ daughter consented to or invited the touching of her person by agreeing to be photographed, see J. H. Harvey Co. v. Speight, 178 Ga. App. 812, 813 (344 SE2d 701) (1986), and if so, whether that consent affects appellees’ right of action. See OCGA § 51-11-2. Thus, we cannot conclude the trial court erred by denying appellant Jarrett’s summary judgment motion on the assault and battery claim. See Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672 (1) (347 SE2d 619) (1986).

5. The school system appellants contend they are entitled to summary judgment on the assault and battery claim on the basis of sovereign and official immunity accorded under Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution because their liability insurance policies do not cover such a claim. The record reveals that the school system holds a school board legal liability policy, which expressly excludes, inter alia, claims “based upon or arising out of . . . assault and battery.” Moreover, the school system appellants’ comprehensive general liability policy covers only bodily injury, which is defined as “physical harm to a person’s health including sickness or disease,” arising from an accidental event, which encompasses “any event that results in bodily injury or property damage that the protected person didn’t expect or intend to happen.” Appellees have alleged that Jarrett committed an intentional tort, not an unexpected act, and have not alleged any physical harm to their or their daughter’s health. Accordingly, we find the trial court erroneously rejected the school system appellants’ argument that the assault and battery claim is not covered by the insurance policies at issue and thus the school system appellants have not waived their sovereign or official immunity. See Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301-303 (2) (357 SE2d 569) (1987).

We note that the individual school board members and the superintendent are not entitled to the defense of official immunity for purely ministerial acts regardless of the lack of insurance coverage. Swofford v. Cooper, 184 Ga. App. 50, 52-53 (1) (360 SE2d 624) (1987), aff’d sub nom., 258 Ga. 143 (368 SE2d 518) (1988). However, the only acts or omissions appellees alleged as to these appellants are negligent failure to terminate Jarrett prior to the incident at issue, and the decision of whether to terminate a tenured teacher is a discretionary one and thus is subject to the defense of official immunity. See generally Hennessy v. Webb, 245 Ga. 329, 330-332 (264 SE2d 878) (1980). Therefore, we hold that the trial court erred by denying summary judgment to the school system appellants on appellees’ assault and battery claim.

6. Appellants in both cases enumerate as error the trial court’s denial of their motions for summary judgment on appellees’ claims asserted pursuant to 42 USC § 1983 on the ground that appellees’ invasion of privacy claim does not raise a violation of any federal constitutional or statutory right. The school system appellants also argue that, because there is no evidence of any intentional or established policy or practice that led to a violation of any constitutional right of appellees, they cannot be held liable for mere negligence in failing to terminate Jarrett or for his tortious acts.

(a) Appellees have asserted a claim for violation of their privacy rights contained in the penumbrae of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. Because 42 USC § 1983 establishes the remedy for individual deprivations of constitutional interests, Martin, supra at 304, we will construe these allegations as a Section 1983 claim.

To recover under Section 1983, appellees must show that an act done under color of state law deprived them of a federal constitutional or statutory right. 42 USC § 1983. We find no authority for appellees’ assertions that the alleged invasion of privacy at issue here is encompassed within the “ ‘fundamental’ ” personal rights. “ ‘implicit in the concept of ordered liberty,’ ” Roe v. Wade, 410 U. S. 113, 152 (93 SC 705, 35 LE2d 147, 176) (1973), that are included within the zone of privacy guaranteed by the United States Constitution. See Katz v. United States, 389 U. S. 347, 350, n. 5 (88 SC 507, 19 LE2d 576, 581) (1967); Griswold v. Connecticut, 381 U. S. 479, 483-485 (85 SC 1678, 14 LE2d 510, 514-515) (1965). Other than the rights protected by specific amendments as discussed in Katz and Griswold, none of which is implicated here, “the protection of a person’s general right to privacy—his right to be let alone by other people—is . . . left largely to the law of the individual States.” (Emphasis in original.) Katz, 389 U. S. at 350-351.

(b) Appellees have alleged the school system appellants also are liable under Section 1983 for appellant Jarrett’s acts. However, appellees cannot recover against these appellants for Jarrett’s alleged tortious acts because governmental officials cannot be held liable under Section 1983 for the acts of their employees under a theory of respondeat superior, Monell v. Dept. of Social Svcs., 436 U. S. 658, 691 (98 SC 2018, 56 LE2d 611, 636) (1978), or for “mere negligence by a government employee.” Martin, supra at 305. Instead, to be liable under Section 1983 they must be charged with “ ‘implementation of an intentional policy, adopted or ratified by the governing body of a public agency, which acts work deprivation of a constitutional right.’ ” (Emphasis in original.) Id.

Appellees also argue the school system appellants may be liable for their failure to terminate appellant Jarrett after receiving notice that he previously had been involved in other incidents similar to the one at issue in the instant case, and have alleged generally in their complaint and interrogatory answers that they believe several incidents similar to the one in the case sub judice have occurred. However, appellant Jarrett denied those allegations in his affidavit, the school system appellants testified by affidavit that they had no personal knowledge of any such incidents, and appellees have not responded with any sworn testimony verifying any of the alleged events.

“ ‘When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest his case as made, but must set forth specific facts and present his case in full in order to show there is a genuine issue for trial. [Cits.] The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time, the opposing party must come forward with rebuttal evidence or suffer judgment against him. [Cits.]’ [Cit.]” Jenkins v. Roper Corp., 185 Ga. App. 219 (363 SE2d 625) (1987). As appellees offered no rebuttal evidence on this issue, we conclude the trial court erred by denying summary judgment to all appellants on appellees’ Section 1983 claim. See generally Martin, supra at 304-305.

Judgment affirmed in part and reversed in part in Case No. 77253. Judgment reversed in Case No. 77254.

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

Deen, Presiding Judge,

dissenting.

While concurring fully with Divisions 1, 4 and 6, I must respectfully take exception with and dissent to Divisions 2, 3, and 5 of the majority opinion.

The trial court correctly denied appellant Jarrett’s motion for summary judgment regarding the invasion of privacy claim. Jarrett stated in his affidavit that he was considered the “unofficial school photographer at Boddie Jr. High.” Cynthia Gay Butts, who was 14 years old at the time of the taking of the photographs, stated that she did not ask Jarrett to take any pictures of her. She said that after repeated requests were made by the teacher she reluctantly permitted him to take photographs of her fingernails.

“After taking pictures of my fingernails in certain positions while I was standing, George Jarrett made me, against my will sit in a chair, instructed me to open my legs and made me pose in certain positions. I told Mr. Jarrett that I did not wish to sit in the chair in the positions that he requested and when I refused to follow Mr. Jarrett’s instructions, he ordered me to ‘shut up and do what I tell you to do.’ When Mr. Jarrett ordered the to do these things, he ordered me in a very loud, intimidating and forceful manner. Mr. Jarrett also grabbed my wrist when I was not in the position that he wanted me in and touched me several times to make me place myself in certain positions. I became very upset with Mr. Jarrett’s actions.

“I was late reporting to my next class because of the photographing. I was very upset and nervous. When I arrived in Ms. Velvelae Chambers physical education class, she wanted to know why I was late. I told Ms. Chambers that Mr. Jarrett made me take some pictures and I started crying. Ms. Chambers instructed me to never let Mr. Jarrett take any pictures of me any more because he is known for doing certain things with pictures.” (Emphasis supplied.)

Her father stated by affidavit that she was upset, nervous, and crying when she got home and reported all of these events to him and her mother. He repeatedly requested that the negatives and films be provided but stated that Jarrett claimed that they were his personal property and refused to provide the films and negatives. Genuine issues of fact remain.

There being some evidence by affidavit that Jarrett was the school system’s unofficial photographer, the trial court did not err in denying the school system’s motion for summary judgment on the privacy claim for the same reasons discussed in the previous paragraph.

Decided February 22, 1989

Rehearing denied March 13, 1989

Anderson, Walker & Reichert, Leland M. Malchow, for appellants (case no. 77253).

Milton F. Gardner, Jr., for appellants (case no. 77254).

Charles A. Mathis, Jr., for appellees.

The majority opinion would reverse the trial court’s denying summary judgment to the school system on the assault and battery claim. This is done primarily on the grounds that the parents of the student did not allege “any physical harm to their or their daughter’s health.” Under the CPA it is not necessary to allege with specificity. A grabbing of the arm and a touching of the student has been alleged, and this is enough to provide issues for the jury as to any harm done relating to the assault and battery claim. “In the nature of things, fire is always attended with more or less danger, and is itself a warning to beware.” Allen v. Augusta Factory, 82 Ga. 76, 79 (8 SE 68) (1888).

I am authorized to state that Judge Beasley joins in this dissent.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    77298.
    McWilliams v. Hayes.
    (379 SE2d 528)
   Pope, Judge.

Appellant-landlord brought a dispossessory action against appellee-tenant for nonpayment of rent. Appellee counterclaimed for actual and exemplary damages based on the appellant’s failure to repair and maintain the premises in which she and her two small children resided. A jury trial resulted in a verdict awarding appellee $1,346 nominal damages and $5,000 punitive damages. Held:

1. Appellant first challenges appellee’s right to recover punitive damages, arguing, inter alia, that a mere breach of his contractual and statutory duty to repair would not authorize punitive damages. “While this principle is sound, we do not agree with [appellant’s] characterization of [his] actions here as a mere breach of [his] duty to repair.” Crow v. Evans, 183 Ga. App. 581, 583 (359 SE2d 446) (1987). The evidence adduced at trial showed that appellee made repeated and numerous complaints, both written and verbal, concerning the condition of her premises, and that she threatened to, and in fact did, withhold rent on several occasions in an attempt to force the appellant to take action on her requests. Specifically, the record shows that appellee informed appellant of leaks in her bathroom sink, which re-suited in a fungus she was unable to eradicate, leaks in her ceiling, a loose fitting door and doorknob on her front door and a severe roach infestation problem. Appellee further testified that her children had suffered physical harm because of these unsanitary conditions and that her apartment had been burglarized with entry being gained through the unsecure front door. The record also shows that appellant was aware of problems in contiguous apartments.

Decided February 7, 1989

Rehearing denied March 13, 1989

Germano & Kimmey, J. Steven Cheatwood, for appellant.

Donald M. Coleman, for appellee.

“ ‘To authorize the imposition of punitive or exemplary damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.’ [Cits.]” Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188, 189 (232 SE2d 62) (1977). “[The] evidence [presented in the case at bar] was sufficient to authorize the jury to find that [appellant’s] inaction evinced a reckless disregard for or a conscious indifference to consequences, . . . thus constituting aggravating circumstances which permit the award of additional damages under the provisions of OCGA § 51-12-5.” Crow, supra at 583. Consequently, this enumeration affords no basis for reversal. See also Field Developers v. Johnson, 160 Ga. App. 180 (2) (289 SE2d 321) (1981).

2. We have examined appellant’s remaining enumerations of error and find them to be without merit.

Judgment affirmed.

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


text:
    77488.
    BATEMAN v. MERICO, INC. et al.
    (379 SE2d 526)
   Pope, Judge.

Appellant Frank Bateman sustained a compensable work-related injury on November 2, 1979. According to one of claimant’s treating physicians, he sustained a ten percent disability to his left arm as a result of the injury. On July 7, 1980, the employer filed a notice to commence benefits for the permanent partial disability. On July 18, 1980, the employer filed a notice to suspend these benefits for the reason, as noted on the Form WC 2, that the “[e]mployee refused to accept compensation because of dissatisfaction with PPD [permanent partial disability] rating.” The record shows the employer paid benefits for temporary total disability for days intermittently missed from work, with the final suspension of such benefits on April 9, 1982. In 1982 the claimant requested a hearing for a modification of benefits, claiming a change of condition. The ALJ found the claimant had not sustained a change of condition and the denial of his request for modification of benefits was upheld on appeal to the board. In 1984 the claimant petitioned for additional benefits for days missed from work and for a change in treating physicians. The petition was denied. On August 20, 1986 the claimant again filed a request for hearing. At the hearing on November 3, 1986 the claimant’s attorney stipulated that the issues to be decided were whether the claimant was entitled to resumption of temporary total disability benefits for missed work and to an award for permanent partial disability. The employer defended the claim on the ground, inter alia, that the request was barred by the applicable statute of limitation. The ALJ denied claimant’s request on the ground it was time barred because it was filed more than two years from the last payment of income benefits. The denial of claimant’s request was upheld on appeal by the board and by the superior court. Claimant appeals, arguing his claim was not barred.

According to OCGA § 34-9-104 (b), a party may apply for modification of benefits “because of a change in condition . . . authorizing the recovery of income benefits . . . provided . . . that at the time of application not more than two years have elapsed since the date of final payment of income benefits due under this chapter.” Now that workers’ compensation benefits may be paid without the entry of an award from the board, an applicant may seek to modify not only an award of the board but also a decision by the employer to pay or deny compensation. See Holt’s Bakery v. Hutchinson, 177 Ga. App. 154 (2) (338 SE2d 742) (1985).

Prior to the 1978 amendments to the workers’ compensation laws, the period of limitation for bringing an application for modification of an award was the date the board was notified of suspension of payment under that award. See Georgia-Pacific Corp. v. Sanders, 171 Ga. App. 799 (1) (320 SE2d 850) (1984). Now that benefits may be made voluntarily without the board’s determination as to what benefits are due, the date of last payment of benefits by the employer would start the running of the two-year statute of limitation only if, in fact, those are the only benefits due to the claimant. If, however, the claimant was potentially due other benefits which were not paid, then the statute of limitation does not commence simply because the employer decides to suspend payments. Holt’s Bakery v. Hutchinson, supra at (3).

It is undisputed in this case that the claimant sustained a permanent partial disability. The only issue in dispute regarding the claim of disability is the degree of that disability. It is undisputed that the claimant has received no payment of benefits for his permanent partial disability. Thus, the claimant was not potentially due other benefits at the time the last income benefits were paid, but was indisputably due other benefits. While no admissible evidence was presented as to why the claimant was not paid these benefits, the notation on the employer’s Form WC 2 indicates the claimant refused to accept payment because he contested the disability rating ascribed by the treating physician. Since the parties could not agree on the amount of benefits due, it was incumbent on one of the parties to invoke the authority of the board to make a determination of benefits due by requesting a hearing. That is precisely what the claimant did when he requested a hearing in August 1986. Because it is undisputed that the claimant is due some amount for permanent partial disability, it cannot be said that the statute of limitation for his request has yet commenced to run. See Metropolitan Atlanta Rapid Transit Auth. v. Ledbetter, 184 Ga. App. 518 (361 SE2d 878) (1987). It is undisputed that claimant has not yet been paid all that is due him under the Act.

Decided February 6, 1989

Rehearing denied March 13, 1989

Keenan Law Firm, Stephen W. Irving, for appellant.

Swift, Currie, McGhee & Hiers, Joseph A. Munger, Robert R. Potter, for appellees.

We reject the employer’s argument that our holding places an unbearable burden on it by tolling the limitation period indefinitely. Under the circumstances found in this case, the employer knew that additional benefits were due the claimant but took no action to determine what those benefits were. The employer could have avoided the burden of uncertainty by requesting a hearing when it learned it could not reach an agreement with the claimant as to benefits due. The employer cannot be allowed to escape the duty to pay any benefits at all simply because the employer and claimant disagreed as to the amount of payments due.

The court erred in upholding the denial of permanent partial disability benefits to claimant. Neither the ALJ nor the board reached the issue of whether the claimant was due additional benefits for loss of time from work because the claimant’s request was deemed to be barred. We remand with instructions that further proceedings be conducted to determine the amount of benefits due for permanent partial disability and to determine whether the claimant is entitled to additional temporary total disability benefits for days missed from work.

Judgment reversed and case remanded with direction.

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


author: Beasley, Judge.

text:
    77609.
    JACKSON v. EASTERS et al.
    (379 SE2d 610)
   Beasley, Judge.

Jackson sued Easters and Coverstitch, Inc., for breach of contract and quantum meruit as a result of an unsuccessful business venture. Jackson appeals from judgment on the jury’s verdict in favor of defendants.

Three paragraphs of the complaint alleged that in June of 1985 “Plaintiff entered into an agreement with the Defendant, C. C. Easters, Steve Wilkins, and Jack Chambliss, whereby for valuable consideration said individuals were to acquire, own, operate and manage a cut and sew contract operation whereby said individuals would be operating a textile business and selling its production .... As per the terms of this agreement, Plaintiff, .... Wilkins and . . . Chambliss were to have a 24 percent undivided interest and the Defendant, C. C. Easters, was to have a 28 percent interest. . . . Pursuant to said agreement, said individuals agreed to incorporate and name their corporation ‘Coverstitch, Inc.,’ which corporation was ultimately completed by the Defendant, C. C. Easters, on or about June 11, 1986.”

Defendants, in their answer, admitted these three paragraphs. No pretrial order was entered. The court, in its charge to the jury, read the allegations and pointed out what facts were admitted by defendants. See generally Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (1) (366 SE2d 223) (1988).

Viewed so as to support the verdict, the evidence showed that Jackson and Easters originally spoke at a gospel sing about going into the business of making neckties. Jackson then located some used equipment and a vacant textile plant in Warrenton. Easters purchased the building. At that point, Jackson and Easters decided that if equipment could be obtained at the right price, they would begin a contract cut and sew operation, not just a necktie manufacturing operation. Easters bought the equipment and interested Wilkins and Chambliss in the venture. All four went to look at the Warrenton building in June 1985, after which they discussed the percentages of ownership. Jackson was to have his “interest” when the business was incorporated and the shares issued. He was not to put up any money but was to use his knowledge and skill to start the business. Jackson admitted that none of the men was to get any “reimbursements, like, you know, any pay or salary or anything like that until the company became profitable.”

He acknowledged that there was to be a “writing down the road at some point in time where these things were to be more specifically defined and set out,” when the business was incorporated. Easters testified that at the point when the business became profitable, he and Jackson were to discuss what Jackson’s salary would be and Jackson would get his shares when he had worked long enough to have earned the 24 percent interest.

Based on the admissions which arose from the answer to the complaint’s allegations, Jackson moved for directed verdict, specifically and solely asking “that the jury, at the appropriate time, be instructed that there is, in fact, an admitted agreement and they would have to show a breach ... on the plaintiff’s part [in order to prevent his recovery] as opposed to an issue of no agreement or an agreement.”

1. The first two enumerations urge error in the court’s denial of the motion for directed verdict and for j.n.o.v. based on it.

“A contract is an agreement between two or more parties for the doing or not doing of some specified thing.” OCGA § 13-1-1.

The party asserting the existence of a contract has the burden of proving its existence and its terms. Casper v. Harrison Hatchery, 172 Ga. App. 35 (321 SE2d 785) (1984); Carter v. Kim, 157 Ga. App. 418 (277 SE2d 776) (1981). The requisites of an explicit contract are a meeting of the minds of the parties, mutuality, and the clear expression of the terms of the agreement. Bagwell-Hughes v. McConnell, 224 Ga. 659, 661 (164 SE2d 229) (1968); Casper, supra at 36.

Assuming without deciding that the allegations of the complaint as admitted provide the basis for the court to find in judicio admissions, see OCGA § 24-3-30; Scott v. Jefferson, 174 Ga. App. 651, 652 (1) (331 SE2d 1) (1985), this would not have entitled Jackson to a ruling that as a matter of law there was a “valid contract.”

All that the complaint alleged and all that was admitted was at most only a portion of the matters at issue and provided for actions to be done in the future. While the admitted matter alludes to an agreement, there was no indication that the facts admitted constituted all of the terms. The testimony of Jackson and Easters indicated that this was not so and that there was disagreement as to the additional terms.

The most that can be said of the admissions is that they represented the commencement of negotiations on a contract which Jackson acknowledges was to be finalized and reduced to writing in the future.

“ ‘If there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement, even though the negotiations evidenced a complete willingness, or even an announced determination, to agree in the future upon such issues as might subsequently arise, it must follow that a valid and binding contract was not made as of the earlier date.’ [Cit.] ‘Unless all the terms and conditions are agreed on, and nothing is left to further negotiations, a contract to enter into a contract in the future is of no effect.’ [Cit.] ‘An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.’ [Cit.]” Wells v. H. W. Lay & Co., 78 Ga. App. 364, 367 (1) (50 SE2d 755) (1948); Bagwell-Hughes, supra; Casper, supra; Hartrampf v. C & S &c., 157 Ga. App. 879, 881 (1) (278 SE2d 750) (1981).

Decided March 2, 1989

Rehearing denied March 13, 1989

William R. McCracken, for appellant.

William M. Wheeler, for appellees.

The court properly denied Jackson’s motion. We note also that, as phrased, the motion was not for the direction of a verdict in favor of Jackson, OCGA § 9-11-50, in that it sought only to have the jury instructed that there was a contract and not that Jackson was entitled to recover thereon. Likewise, the denial of the motion for j.n.o.v. was not error.

2. In his third enumeration Jackson claims error in the trial court’s denial of his motion for new trial on the ground that the court failed to charge, without a request, OCGA § 13-3-4, concerning conditions precedent and subsequent in contracts. At the conclusion of the court’s charge, Jackson excepted only to the failure of the court to give one of its submitted requests.

“OCGA § 5-5-24 prohibits a party from complaining of the giving or failing to give jury instructions unless it objects before the jury returns its verdict, except where there has been a substantial error in the charge which was harmful as a matter of law.” Dept. of Transp. v. Old Nat. Inn, 179 Ga. App. 158, 162 (5) (345 SE2d 853) (1986). Because some of the specifics of the agreement were left to be resolved, as discussed supra, OCGA § 13-3-4 was not relevant; so the failure to give it was not harmful as a matter of law.

3. The final enumeration is the court’s direction of a verdict against Jackson’s claim for punitive damages. The contention is that he was entitled to have punitive damages considered by the jury as a proper element of recovery in a wrongful repossession claim. This is the first mention of any such wrongful repossession claim, and errors presented for the first time on appeal will not be considered. City of Buford v. Thomas, 179 Ga. App. 769, 772 (2) (347 SE2d 713) (1986).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    77616.
    JIFFY STORE, INC. v. BISHOP.
    (379 SE2d 602)
   Beasley, Judge.

Defendant Jiffy Store appeals from the order denying its motion for directed verdict, the judgment entered on the verdict, and the orders denying its motions for new trial and judgment notwithstanding the verdict.

1. This is a “slip and fall” case. Based upon the evidence adduced at trial, when plaintiff Bishop approached the store owned by Jiffy he noticed that the floor looked shiny and that a man was mopping floors. He opened the door and asked a female employee there if it was all right to come in and get some milk and was told “yeah, come in.” Bishop looked where he was going and although the floor was shiny, he could not say it was wet. About three steps into the store, he slipped, fell and injured his leg. The female employee testified that the floor had been wet mopped but was not wet at the place where Bishop fell. There was no wax or slippery substance on that part of the floor. The employee did admit that the floor was wet in some places and waxing had begun in a corner of the store.

At his home the following day Bishop, who had been taken to the hospital for examination, observed a foreign substance on his shoe. He testified: “There was something stuck to the bottom of my shoes. I couldn’t swear it was wax or where [sic] it was soap or wash powders or what. But, there was something on both shoes.” His opinion was that something on his shoes caused him to fall. He further stated that there “had to be” something slippery on the floor and affirmed that some of it was left on his shoes. On cross-examination he admitted not seeing anything on the floor, but maintained: “There had to be something on it, though, because it was on my shoes the next morning.” There is no evidence to identify the “something” as either water or wax or any other substance which came from the floor at the time of the incident.

Knowledge, either actual or constructive, by the owner or its employees of the presence of a dangerous condition or slippery substance is an essential element for recovery. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980); Motes v. 6 ‘S’ Co., 186 Ga. App. 67 (366 SE2d 358) (1988). “[T]he proprietor’s liability is based upon his superior knowledge and the absence of such knowledge by the invitee.” Congleton v. Starlite Skate Center, 175 Ga. App. 438, 439 (333 SE2d 677) (1985). Requisite is a finding that “the defendant’s employee had ‘an opportunity to discover and remove the hazard,’ which can only be shown ... by evidence that the hazard existed for a length of time sufficient for the defendant to discover the hazard and remove it.” Mitchell v. Food Giant, 176 Ga. App. 705, 709 (337 SE2d 353) (1985). See Professional Bldg. v. Reagen, 129 Ga. App. 183 (199 SE2d 266) (1973).

After entry of the judgment on a jury verdict, on appeal the evidence is construed in favor of upholding that verdict. There may be knowledge attributable to the owner of water, wax and perhaps even some unknown cleaning materials on the floor. However, plaintiff had the burden of establishing the owner’s prior knowledge of the substance or condition which caused plaintiff to fall. There was no proof of actual knowledge. The presence of “something” on plaintiff’s shoes the next day does not prove constructive knowledge. It does not support plaintiff’s speculation that “there had to be something on” the floor because “it was on my shoes the next morning.” From the record, “it” could have adhered to plaintiff’s shoes prior to his arrival at the store or sometime after the incident before being discovered the following morning.

To sustain a verdict predicated upon circumstantial evidence there must be more than mere conjecture. “When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury’s decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions.” Georgia R. &c. Co. v. Harris, 1 Ga. App. 714, 717 (1) (57 SE 1076) (1907): Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780 (257 SE2d 186) (1979). See OCGA § 24-1-1 (4). “[A] mere inconclusive inference, or ... a mere scintilla, is not to be regarded as any evidence, so as to require the submission of its sufficiency to the jury.” Harris, supra at 716. “[W]here evidence is not more than a scintilla, if it is dependent entirely upon guess or speculation, it is insufficient to support a verdict.” Ladson Motor Co. v. Croft, 212 Ga. 275, 277 (92 SE2d 103) (1956).

The evidence of “something” on plaintiff’s shoe the next morning does not support the conclusion that it was on the floor where he fell and that defendant’s employee was aware of its presence prior to that fall. It most certainly does not render less probable all inconsistent conclusions, such as that it came from another source and that defendant’s employee had no knowledge of its presence in time to take corrective action or issue a warning. Here, as in Bartell v. Del Cook Lumber Co., 108 Ga. App. 592, 601 (133 SE2d 903) (1963), plaintiff’s evidence depended on the remotest and most speculative conjecture and was insufficient to authorize the verdict. See Cohen v. Hartlage, 179 Ga. App. 847, 850 (348 SE2d 331) (1986).

It was error to deny the motion for judgment notwithstanding the verdict. The judgment must be reversed with direction that judgment be entered for defendant. See Stafford Enterprises v. American Cyanamid Co., 164 Ga. App. 646, 650 (297 SE2d 307, 299 SE2d 390) (1982).

Decided February 28, 1989

Rehearing denied March 13, 1989

Dillard & Landers, Daniell S. Landers, for appellant.

Donald A. Starling, for appellee.

2. In view of our ruling in Division 1, the remaining enumerations of error need not be considered.

Judgment reversed with direction.

Banke, P. J., and Birdsong, J., concur.


author: Birdsong, Judge.

text:
    77732.
    DOUGHTY v. SIMPSON.
    (380 SE2d 57)
   Birdsong, Judge.

Leroy Doughty, d/b/a Doughty Remodelers and Builders, brings this appeal from judgment for appellee, Ronald Simpson, entered in a trial before the judge acting without intervention of a jury.

Simpson, an electrical contractor, entered into a contract with Doughty, who identified himself as “a home improvement carpenter” for the construction of a one-room addition to Simpson’s home. The rear sundeck was to be removed and a room constructed in that location to house a jacuzzi. Doughty drew up the contract which covered the majority of one, letter-sized page and generally recited construction of a room in accordance with an attached drawing for the price of $12,500—$7,000 at the signing of the contract, $3,500 when the room was “dried in,” and the balance of $2,000 when the “room is completed and final inspection is made. . . .”

The contract was signed by both parties but contained no details as to construction, little guidance as to material to be incorporated, and no mention of installation of a slate floor and tiles surrounding the jacuzzi, heating and air-conditioning, entry or exits, doors, stairways or steps.

The owner made the initial payment of $7,000. Doughty secured a builder’s permit and construction commenced. The room was “dried in” and inspected by a City of Atlanta building inspector. The second payment of $3,500 was made and Doughty contends he completed construction. A final inspection was made by the city building inspector but final approval was not given.

The evidence is in conflict but the trial judge was authorized to find Simpson voiced his complaints to Doughty and the building inspector. The slate floor had been installed with the wrong side facing up. The grout between the tiles came out and the tile started coming up. The room was not properly aligned with the house and the boards were bent into place rather than a “hip” being constructed. The rear concrete steps were poured but not completed. A licensed heating and air-conditioning contractor was not used as required by the Building Code of the City of Atlanta and final approval was withheld. Dirt was piled up beside the house and washed onto the tennis court. The contractor parked his truck on the lawn and damaged the sod. When Doughty knocked a hole in the basement wall, the interior of the house was damaged, i.e., a marble top bar, the acoustical ceiling, etc.

Simpson discussed these problems with Doughty and said that the appellant told him: “Mr. Simpson I’m not going to do a durn thing else to your room.” Simpson refused to make the final $2,000-payment and Doughty filed this action. Simpson filed a counterclaim for damages to correct the alleged defective work, for loss of use of his property for which he is unable to obtain a certificate of occupancy, for injury to the landscape and tennis court, for loss of income and beneficial use of money he paid to appellant which was not earned.

The trial court found that appellant has failed to obtain final inspection approval and to obtain a licensed heating and air conditioning contractor to get final approval of the room addition. The court also found that the appellee was denied use of the room addition, loss of interest charges on the loan made to finance construction of the room, loss of $3,300 in income due to his time spent away from his business due to appellant’s breach of the contract, and that both city inspectors were of the opinion that the work done was not in compliance with City codes and was not of good quality.

The trial court held that the appellant failed to carry his burden of proof to entitlement of the remaining $2,000 contract balance or $1,425 claimed as quantum meruit for additional work alleged to be outside the contract.

The court found further that appellant breached the contract and his performance “was tardy, faulty and incomplete.” Judgment was granted to appellee on his counterclaim in the amounts of: $5,841 to correct the deficiencies and complete work not done by appellant; $3,000 for loss of use of his property and $600 in attorney fees. Doughty has filed this appeal. Held:

1. The finding of the trial court denying recovery to appellant for the remainder due under the contract and for additional work done outside of the contract is supported by the evidence of record. The remaining $2,000 under the contract was due following final approval by the City. Final approval has been denied because of appellant’s failure to use a licensed contractor to install the heating and air conditioning work, which is required by the City’s building code. This deficiency has never been corrected. The trial court heard the conflicting evidence as to whether certain work done was included within the contract or was in addition to the contract. This issue was resolved in favor of appellee and the trial court’s finding is not clearly erroneous. OCGA § 9-11-52 (a); Bell v. Cronic, 248 Ga. 457, 459 (2) (283 SE2d 476).

2. Error is alleged in the grant of judgment to appellee in the amount of $5,841.80 for repair on the work done or not completed. A duty is implied in every construction contract “ ‘ “to perform it skilfully, carefully, diligently, and in a workmanlike manner,” ’ ” and whether the contractor exercised the required degree of skill is for the trier of fact. Blue v. R. L. Glosson Contracting, 173 Ga. App. 622, 623 (327 SE2d 582). The trial court found that Simpson had been a licensed electrical contractor in commercial and residential construction in excess of 20 years and presented an estimate from a licensed general contractor showing the cost of repair as $5,841.80. Simpson’s opinion testimony was admitted that the price quoted was reasonable for the work specified. Where the question to be decided by the finder of fact is “one of opinion, any witness may swear to his opinion . . . giving his reasons therefor.” OCGA § 24-9-65. Hence, it was not error to allow Simpson to testify to the amount necessary to correct the deficiencies in appellant’s work and to complete the work in accordance with the contract as his opinion was based on his observation and personal knowledge and he gave the reasons for his opinion. Benn v. McBride, 140 Ga. App. 698, 700 (231 SE2d 438); Arkansas Fuel Oil Co. v. Andrews Point Co., 64 Ga. App. 595 (1) (13 SE2d 738); Green, Ga. Law of Evid. 181, § 110. Determination of whether the witness has established sufficient opportunity for forming a correct opinion, and a proper basis for expressing his opinion, is for the trial court. Department of Transp. v. McLaughlin, 163 Ga. App. 1, 5 (3) (292 SE2d 435).

Appellant argues that the estimate of the general contractor is hearsay and it was error to admit it in evidence. “Evidence of value is not to be excluded merely because the valuation fixed by the witness as a matter of opinion depends on hearsay, hence the testimony of the witness is not objectionable for the reason stated.” Powers v. Powers, 213 Ga. 461 (2) (99 SE2d 818); accord State Hwy. Dept. v. Edmunds, 113 Ga. App. 550, 553 (149 SE2d 182). The proper measure of damages for defective workmanship is the cost of repair of the defects. Simmons v. Boros, 255 Ga. 524, 525 (341 SE2d 2); Gregory v. Townsend Roofing Co., 163 Ga. App. 836 (1) (296 SE2d 154). This enumeration is without merit.

3. Appellant contends the trial court erred in awarding appellee $3,000 in damages as compensation for “loss of use.” Appellee’s counterclaim was based on appellant’s alleged defective work and delay in completion of the contract work. Appellee testified that the contract was signed in April 1987, and work was to be completed in “approximately a month or a month and a half,” according to Doughty. At the time of this trial, July 11, 1988, the room was not complete and Simpson was unable to get a certificate of occupancy from the City of Atlanta.

The trial court held that appellant’s work was “tardy, faulty and incomplete.” The measure of damages to correct the “faulty” work was the amount necessary to correct the defective workmanship. Simmons, supra. For “delay” in the performance of a contract, unless excused or waived, damages caused most often take the form of loss of use of the property involved. See generally 22 AmJur2d 87-88, Damages, §§ 69; 70. Georgia courts have approved the award of damages for loss of use. See F. H. Ross & Co. v. White, 224 Ga. 324 (1) (161 SE2d 857), loss of use of a truck; White Repair &c. Co. v. Krasnoff, 138 Ga. App. 613 (2) (227 SE2d 82), loss of rental receipts; Lurlee, Inc. v. Pernoshal-39 Co., 135 Ga. App. 724 (218 SE2d 701), loss of rental due to faulty and incomplete construction; Globe Motors v. Noonan, 106 Ga. App. 486 (7) (127 SE2d 320), loss of use of a truck.

The Restatement of Contracts clearly sanctions damages for any loss “including incidental or consequential loss, caused by the breach” where the amount caused by delay of use of the property is provable with reasonable certainty. Restatement, Contracts 2d, § 347 (b). If the amount of a loss in value of the property cannot be proved with reasonable certainty, the injured party may recover damages based on rental value or interest on the value of the property. Restatement, Contracts 2d, § 348.

Accordingly, we find damages were recoverable for loss of use of the contract property due to breach by appellant occasioned by the lengthy delay in excess of the agreed upon period. In this connection, we are in agreement with the trial court that because of “a poorly written contract” drafted by appellant, we do not view the contemporaneous oral agreement of the parties as parol evidence contradicting or varying the terms of a contract (OCGA § 24-6-1) but is explanatory of the incomplete contract terms. Thomas v. Clark, 178 Ga. App. 823, 825 (344 SE2d 754).

Appellee testified to the interest charges on the loan ($20,000) obtained to pay for the room addition—approximately $386.18 per month (for 14 months) at the time of trial—July 1988. Under the Restatement, if value cannot be proven with reasonable certainty, interest on the value of the property may be used to establish damages. Restatement, Contracts 2d, § 348. The reasonable value of the room addition was established as approximately $20,000. In addition, appellee lost the use of his tennis court and a portion of his basement for a limited period of time when appellant knocked a hole in the basement wall. It is doubtful that an exact value can be placed on the loss of use of such amenities. It is also doubtful that a person would agree to be deprived of the loss of use of his tennis court, bar, recreation room and spa for an extended period of time for the sum awarded—$3,000.

Decided February 16, 1989

Rehearing denied March 13, 1989

Jones, Morrison & Womack, Lewis N. Jones, for appellant.

Benjamin W. Spaulding, Jr., for appellee.

However, proof of amount of damages should not be made upon guesswork, conjecture, or speculation, but should be established with reasonable certainty. Gray v. Nelson Irrigation, 132 Ga. App. 503, 504 (3) (208 SE2d 346); Lester v. S. J. Alexander, Inc., 127 Ga. App. 470 (1) (193 SE2d 860). Hence, the only amount of damages established with a reasonable degree of certainty is the amount of interest charges on the value of the room addition. Appellee borrowed $40,000 and used only one-half of the loan for the addition of the room. Thus, only one-half of the finance charges ($386.18 x 14 months = $5,306.52 divided by 2 = $2,653.26) is attributable to interest charges on the value of the contract property—$2,653.26. The remainder of the damages awarded for loss of use must be written off.

4. The trial court awarded appellee $600 as attorney fees on the basis that the attorney advised it had spent approximately six hours on this case and would bill the appellee for that amount. The attorney stated he was charging Simpson at the rate of $100 per hour for a total of $600.

Expenses of litigation generally are not recoverable, unless specially pleaded, as in the instant case, and the other litigant has acted in bad faith in making the contract, has been stubbornly litigious, or has caused the prevailing party unnecessary trouble and expense. OCGA § 13-6-11; Spivey v. Rogers, 173 Ga. App. 233, 240 (5) (326 SE2d 227). The factfinders may allow attorney fees if they find any one of the three criteria present. Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 460 (278 SE2d 33). Because the award is supported by some evidence of stubborn litigiousness and causing appellee unnecessary trouble and expense, we will not disturb the trial court’s findings. Harrison v. Ivie, 143 Ga. App. 856, 857 (240 SE2d 224).

Judgment affirmed on condition that damages awarded for loss of use in excess of $2,653.26 be written off; otherwise judgment reversed.

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


text:
    77761.
    GIDDENS v. THE STATE.
    (380 SE2d 274)
   Beasley, Judge.

Giddens appeals his convictions of armed robbery (OCGA § 16-8-41 (a)), theft by taking (OCGA § 16-8-2), unlawful possession of a firearm during commission of a felony (OCGA § 16-11-106 (b)), and kidnapping (OCGA § 16-5-40 (a)).

Early in the morning of Thursday, October 2, victim Carver and Jeff, a friend, left a bar and headed for Carver’s car on a nearby street. As the two men approached the car, they saw Giddens sitting on the car and co-defendant Ryan leaning against a wall. Giddens apologized for sitting on the car and got up, and he and Ryan started to walk away. As Carver was opening his car door, Jeff yelled that the two men had a gun, at which point defendant stuck a gun in Carver’s ribs and threatened to kill him. Jeff ran, pursued by Ryan, who chased him a short way and returned to the car. Ryan went through the glove compartment as Carver continued to struggle with defendant. Carver stood up and defendant pushed him back into the driver’s seat. The two men told Carver he was going with them and they were going to kill him. Carver gave defendant his car keys and his cash and asked them to leave.

Jeff returned and yelled that he had called the police, although he had been unable to find a working phone. Defendant kept trying to get Carver into the car and shut the door. Ryan again chased Jeff off and returned. As Carver tried to exit from the passenger side of the car, Ryan grabbed his legs but lost his grip, allowing Carver to run to a bar, where he encountered a policeman who had responded to a call reporting screams. Carver described the assailants to the police.

Carver got his spare set of keys and retrieved his car, but it was stolen the next evening from the street near his apartment.

Early on Sunday, October 5, a Fayette County deputy observed Carver’s car weaving and tried to pull it over. A chase resulted in the car skidding onto an embankment. Three men were in the car and two ran, leaving one Bedingfield. In the car were found a long black wig, which matched the description given by Carter of Ryan’s hair during the incident, and a pistol of the type used in the robbery. A sawed-off shotgun wrapped in a sheet was tossed from the car before the stop. The arresting officer recognized Ryan and defendant as the two men who ran. Bedingfield identified Ryan as one of the two men in the car, and said he knew the other only by “Tony.” He said that Ryan and Tony had picked him up in the car on Saturday night, October 4.

The next day, Carver was shown two photo spreads, one including Ryan’s photo and the other including Bedingfield’s. He immediately picked Ryan as the assailant without a gun. He chose Bedingfield as the assailant with the gun, based primarily on the length, styling and color of his hair, as shown in a photo taken in 1981. At no time was he shown a picture of defendant. Carver was later shown a second photo of Bedingfield, taken on the night of the arrest. He identified him as the same individual whose picture he had seen earlier but expressed hesitancy as to a positive identification.

In court on a day prior to trial, Carver was present in the hallway with the district attorney’s investigator. They again discussed the second individual and Carver said he needed to see the man in person. The investigator told him to go to the door of the courtroom and see if he could identify the man. Defendant was in the courtroom, along with his attorney and other people, and Carver positively identified defendant.

A motion to suppress Carver’s in-court identification of defendant was made on the ground that asking Carver to identify someone else other than first-identified individual, in effect, told Carver that he identified the wrong man and impermissibly tainted any in-court identification. After a hearing, the court denied that motion.

During trial, Carver acknowledged that he initially chose the photo of Bedingfield, then related the in-court encounter and said he was sure defendant was the second man. After cross-examining Carver as well as after Ryan’s cross and the State’s redirect exams, defendant moved for a mistrial on the ground that the identification at the prior court date was an impermissible showup conducted without assistance of counsel, violating his Federal, Sixth Amendment, right. It was denied.

1. Defendant enumerates the trial court’s failure to grant the mistrial because of alleged prosecutorial misconduct in conducting the showup. This ground, however, was not asserted in the motion for mistrial and will not be considered here for the first time. Stokely v. State, 188 Ga. App. 489, 490 (2) (373 SE2d 230) (1988).

2. Defendant also objects that evidence of a showup conducted after indictment is inadmissible when conducted without benefit of counsel, based on the Sixth Amendment and United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149) (1966). No objection to the evidence was raised at the time of its introduction and prior to trial, no motion to suppress that evidence was made. Only later was the motion for mistrial voiced. “[A] motion for mistrial which is not made at the time the questions objected to are answered is not timely and will be considered as waived because of the delay in making it. [Cits.]” Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986); Boscaino v. State, 186 Ga. App. 133, 134 (3) (366 SE2d 789) (1988); Whittington v. State, 184 Ga. App. 282, 285 (3) (361 SE2d 211) (1987).

3. Defendant contends there was no evidence of asportation as an element of the crime of kidnapping. OCGA § 16-5-40. He argues that no case has upheld a kidnapping conviction on less than fifteen feet of asportation, so that what was described here by the State’s witnesses did not constitute asportation of Carver. See, e.g., Haynes v. State, 249 Ga. 119 (1) (288 SE2d 185) (1982); Waters v. State, 248 Ga. 355, 367 (9) (283 SE2d 238) (1981). There is no minimum requirement as to the distance. “That asportation was of short duration is without legal significance . . . .” Waters, supra; Brown v. State, 132 Ga. App. 399, 401 (2) (208 SE2d 183) (1974); see Briard v. State, 188 Ga. App. 490, 491 (1) (373 SE2d 239) (1988); McKenzie v. State, 187 Ga. App. 840 (1) (371 SE2d 869) (1988) (as to second, third, and fourth victims).

Decided February 9, 1989

Rehearings dismissed February 27 and March 13, 1989.

Glen Galbauth, Jason M. Braswell, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Keith L. Lindsay, Nancy A. Grace, Assistant District Attorneys, for appellee.

Carver was forced into the car at least twice and both Giddens and Ryan were engaged in holding him there when he escaped. “[0]nce he refused to let [him] out of the car and held [him] against [his] will, a kidnapping occurred.” Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592) (1983); see Neal v. State, 169 Ga. App. 714 (1) (314 SE2d 721) (1984).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    77876.
    UNIVERSAL UNDERWRITERS LIFE INSURANCE COMPANY v. MASON.
    (380 SE2d 286)
   Banke, Presiding Judge.

The appellee was disabled by a work-related injury which occurred on June 12, 1986, and thereafter sought disability benefits pursuant to the terms of a credit insurance policy issued by the appellant insurance company. The effective date of the coverage was April 16, 1986. The appellant denied the claim based on an exclusionary clause in the policy pertaining to disability caused by “a pre-existing medical condition for which the insured received medical treatment within the 6 months before the effective date on the certificate and which resulted in disability within the 6 months after the effective date.” The appellee then instituted the present action against the appellant to recover the benefits, plus a bad-faith penalty and attorney fees. The case is before us pursuant to our grant of the appellant’s application for an interlocutory appeal from the denial of its motion for summary judgment.

The medical evidence of record establishes without dispute that the appellee injured his back in 1979, that he has received extensive medical treatment since then for chronic back and leg pain caused by a degenerative disc condition, and that he both suffered from such pain and sought medical attention related thereto during the six months prior to the effective date of the insurance coverage. For example, on March 12, 1986, he experienced severe back and leg pain after stepping into a hole at work and was thereafter treated for the pain by several physicians and a chiropractor. Upon examining the appellee after the occurrence of the June 12, 1986, injury, the appellee’s own chiropractor concluded that his complaints were not the result of a new injury but of the aggravation of an old injury. Held:

The evidence of record establishes without dispute that the appellee’s disability was caused by a pre-existing medical condition for which he had received medical treatment within the six months immediately prior to the effective date of the coverage extended by the appellant insurer. It follows that the appellee’s claim is not covered under the terms of the insurance contract, with the result that the trial court erred in denying the appellant insurer’s motion for summary judgment. Accord Life & Cas. Ins. Co. of Tenn. v. Crowe, 147 Ga. App. 629 (249 SE2d 682) (1978).

Judgment reversed.

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

Beasley, Judge,

dissenting.

The trial court should be affirmed because there are issues of fact related to whether it was the pre-existing medical condition which resulted in the disability. There is evidence that the immediate cause of the insured’s becoming disabled was an on-the-job injury to his back when he was knocked down by a golf cart on June 12. For one thing, his treating chiropractor testified that there was a “very obvious” change and a “tremendous increase in the severity of the condition” following the accident. There is evidence that the disability did not occur merely by a worsening or degeneration of the pre-existing condition. There is evidence that the pre-existing condition was not disabling before the June 12 accident.

The crucial part of the exclusion here is that it only cuts out disability benefits when the pre-existing medical condition for which there has been recent treatment “resulted in disability” within the specified time.

The policy provision is to be construed most strongly against the insurer. Welch v. Professional Ins. Corp., 140 Ga. App. 336 (231 SE2d 103) (1976); Hartford Life Ins. Co. v. Crumbley, 169 Ga. App. 847, 849 (315 SE2d 54) (1984). This applies even more strictly when the insurer denies coverage based on an exclusion. Morrison Assur. Co. v. Armstrong, 152 Ga. App. 885, 888 (264 SE2d 320) (1980).

Decided February 21, 1989

Rehearing denied March 13, 1989

Dillard & Landers, Terry A. Dillard, Bryant H. Bower, Jr., for appellant.

Edward E. Boshears, for appellee.

We cannot read into it a broader exclusion, such as that there is no coverage when the pre-existing condition in part resulted in the disability or that it contributed to the disability, or that a new injury which aggravated a pre-existing condition to the point of disability worked an exclusion. The exclusion is simply stated and does not by its wording cover these circumstances. We must be cognizant that the purpose for which such insurance was issued in the first place was to provide credit benefits if the insured became medically disabled on account of future events.

The burden of the insurer to prove the exclusion, Staten v. Gen. Exchange Ins. Corp., 38 Ga. App. 415, 418 (2) (144 SE 53) (1928); Livaditis v. Am. Cas. Co., 117 Ga. App. 297, 300 (1c) (160 SE2d 449) (1968), and the burden which that insurer has as movant for summary judgment, OCGA § 9-11-56, have not been met as a matter of law.

I am authorized to state that Chief Judge Carley, Presiding Judge Deen, and Judge Benham join in this dissent.


text:
    77919.
    J. C. PENNEY CASUALTY INSURANCE COMPANY v. WOODARD et al.
    (380 SE2d 282)
   Birdsong, Judge.

J. C. Penney Casualty Insurance Company appeals from a jury verdict judgment of $140,000 plus pre-judgment interest, awarded under uninsured motorist coverage for the death of 17-year-old Darien L. Woodard.

Young Woodard was driving his uncle’s car which was insured by Penney. It is undisputed that Woodard’s parents held $60,000 in uninsured motorist coverage through State Farm Mutual Automobile Insurance Company, but that they failed to timely notify State Farm of the boy’s death, so that coverage was unavailable. State Farm is excused from the case. Penney, by motion in limine, sought a ruling that the State Farm coverage was primary and the Penney uninsured motorist coverage of the uncle’s vehicle was secondary, with the contention that Penney’s $100,000 liability coverage would therefore be limited to the excess over the $60,000 State Farm insurance that was available but not availed. The trial court found Penney liable, if at all, to the full limit of $100,000 of its uninsured motorist coverage of the vehicle’s owner. From this and other alleged erroneous rulings and actions, Penney appeals. Held:

1. The appellees argue persuasively that since Penney accepted timely premiums for $100,000 coverage from the vehicle’s owner, and since the Penney policy does not require some other “primary” insurance be available or availed (c.f., Lamb Bros. Lumber Co. v. South Car. Ins. Co., 186 Ga. App. 51 (366 SE2d 388)), Penney should not logically be allowed to take unconscionable advantage of the fact that there was other coverage available for which the appellants failed to give timely notice after the death of their son.

This proposition, however, runs smack into the general principles that parties are required to mitigate their damages, and that the plaintiff/appellees should not be allowed to take advantage of their own neglect, to Penney’s undue detriment. Penney analogizes to this case three cases involving insurance recovery set-offs for the plaintiff’s available or eligible no-fault benefits: Davidson v. Bradford, 245 Ga. 8 (262 SE2d 780); North v. M. C. Anderson, Inc., 165 Ga. App. 407 (300 SE2d 2) and Glover v. Grogan, 162 Ga. App. 768, 771 (292 SE2d 465). The difference, however, is that drivers are required by law to secure no-fault benefits but uninsured motorist coverage is not mandatory. If, neither by statute nor by an insurance policy, no other (primary) uninsured coverage is required and the insurer’s premium is not scaled to the existence or availability of other insurance, there lies no basis to modify an insured’s unqualified contract rights to the full coverage available from an insurer.

This situation is more analogous to that of State Farm &c. Ins. Co. v. Bd. of Regents &c., 226 Ga. 310 (174 SE2d 920), where it was held that uninsured coverage is a matter of contract; and although certainly the fact of insurer’s liability is dependent upon the tortfeasor’s liability, nevertheless the tortfeasor is not entitled to a set-off for the amount of insurance paid, for that is a matter of contract. It is “a contractual obligation and not in discharge of the tortfeasor’s liability to the injured or damaged person.” Id. p. 311. So, here, Penney’s obligation to pay to the limit of its coverage is a contractual obligation of Penney, not in discharge of the tortfeasor’s liability or of the contractual liability of any other insurer on his (or the vehicle owner’s) account.

If the plaintiffs had timely filed notice with State Farm, the resulting benefit of $60,000 in primary uninsured coverage to satisfy the $140,000 judgment, would have been a bonus for Penney. But this existence of other coverage is not a bonus to which Penney is entitled by contract or law, and the plaintiffs’ failure to take advantage of that other insurance cannot be used to modify Penney’s contract obligation.

This is, we agree, a difficult question where the plaintiffs have failed to reduce their damages by availing themselves of their own primary insurance; but “mitigation of damages” is in fact not a principle to apply in every case. It does not apply in a case of fraud, a positive tort (OCGA § 51-12-11) or breach of warranty. Haley v. Oaks Apts., 173 Ga. App. 44, 45 (325 SE2d 602). In a breach of contract case, the injured party is required by statute to “lessen [his] damages so far as is practicable . . .” (OCGA § 13-6-5), but even that rule of law does not apply “where there is an absolute promise to pay.” (Emphasis supplied.) Id. p. 46, quoting Reid v. Whisenant, 161 Ga. 503, 509-510 (131 SE 904). Therefore, they are not required to mitigate damages to which they are contractually entitled as a matter of agreement and premium. Moreover, the plaintiffs in this case did not through their own negligence and delay in applying for other insurance that was available, primary or otherwise, “set about to make their damages worse” so as deliberately to take unconscionable advantage of Penney. Id. p. 46. They simply failed to avail Penney of a bonus. Their failure to take advantage of other insurance had nothing to do with Penney’s contractual obligation.

Since the appellees were not required by law or contract to reduce Penney’s liability by obtaining, maintaining, or availing themselves of other insurance, we conclude neither were they required by any legal or equitable principle of duty to mitigate Penney’s “absolute promise to pay” in this case. (Emphasis supplied.) Id.

Under today’s law, the fact that plaintiffs had other benefits or insurance “available” would be admissible for the factfinders’ consideration as to damages (OCGA § 51-12-1); but one who is bound by an absolute promise to pay any liability is not entitled to a set-off by that code section.

We conclude the trial court did not err in refusing to limit Penney’s coverage to any excess of $60,000, up to the policy limit of $100,000.

2. The appellant Penney contends that, on the evidence, it should have been entitled to a directed verdict as to liability. Darien Woodard’s death at seventeen occurred while he was driving his uncle’s car on the interstate highway. A truck driver behind him saw sparks flash under a truck traveling next to the young man’s vehicle, indicating the truck was dragging something. The truck driver saw Woodard’s brake lights go on and then saw an object go “underneath” Woodard’s car. Evidently Woodard lost control and drove into the median for about 100 yards before inexplicably shooting back across the highway and into a clump of trees. The truck-driver witness testified that when the boy’s car came to rest, he went to the car and saw a tree limb sticking in the front of the car, and concluded Woodard had been killed by concussion from the tree limb. The evidence varied greatly. There was evidence that the sparks seen by the truck-driver witness appeared to have been caused by a metal object in the road, perhaps a loading ramp similar to a ladder. In any case, a metal “ramp” was found on or at the car after it came to rest. The investigator testified the ramp was leaning on the car when he got to the scene, but it had blood and bits of flesh on it. There was testimony that the object was a loading ramp and might have fallen off a truck. Another witness said he saw the ramp sticking into the car. The appellants on appeal contend this witness was “incredible.”

All of this re-arguing of the evidence, upon which the jury has already passed, provides no basis for an appeal. The entire question of fact, and particularly the weight and preponderance of the evidence, are for the jury. On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. McLarty v. Kushner, 173 Ga. App. 432 (326 SE2d 777).

The appellant insists that the entire cause of death is speculation in this case, and that in fact it might have been anything which caused Woodard’s death. But if appellant concedes this much, then it might as well have been a metal ramp that had flesh and blood on it and was seen by several witnesses shooting under the car, at the bumper, or leaning on, or in, the car. This must be what the jury concluded, considering testimony that the truck driver saw an object fly from under the other truck and onto Woodard’s car, and cause him to lose control. This verdict is well supported by the evidence in this case.

3. The trial court did not err in permitting a witness to testify that if the object in the roadway was a ramp, this would indicate it had fallen from a flat-bed trailer to which it had been improperly fastened. Penney urges error because “there is no evidence in the record that the object which caused sparks to fly from under . . . Woodard’s [car] was the loading ramp which [the witness] first saw only after the Ford [came] to rest in a clump of trees.”

The ruling in Division 2 herein shows by the evidence that there was plenty of circumstantial evidence that the object which caused sparks to fly from under Woodard’s car was the loading ramp which another witness saw only after Woodard’s car came to rest. The unlikely coincidence alone, in the precipitating “sparks” and the ramp’s presence at the car, is a fact which the jury might give weight; as is the further “coincidence” that a metal ramp was found leaning on or in the car at a clump of trees beside the interstate, and the further coincidence that the ramp had flesh and blood on it. Perhaps the jury concluded that, whatever struck Woodard’s head, it was the ramp which made him lose control and made inevitable his death. These new positings by appellants show the futility and impropriety of reweighing the evidence after the jury has ruled.

4. The trial court did not err in permitting witnesses Loos and Welch to testify that if the object in the roadway was a ramp, this would indicate that it had fallen from a flat bed or low-boy trailer to which it had been fastened improperly or negligently. Despite appellant’s protests that the ramp might have arrived on the spot by other means, the witnesses’ opinions fall far short of speculation and are well within the witnesses’ expertise, as well as the jury’s common sense, according to the weight it is entitled to give circumstantial evidence. If appellant contends, as it obviously does, that the ramp might have come from anywhere, then it must concede the possibility and, according to the witnesses, the likelihood, that it fell from a flat bed truck after being fastened insecurely.

5. Penney then argues the trial court erred in charging the plaintiffs’ particular request to charge concerning the value of young Woodard’s life. These arguments are not well taken. The charge was substantially correct, not incorrect as a matter of law, and did not result in any clear-cut illegal or undue award.

6. Penney made a motion to strike Alton Woodard as a party plaintiff, because the deceased was a child born out of wedlock in 1968; Mrs. Woodard did not marry Mr. Woodard until 1970, and there was allegedly no evidence he was the boy’s father by nature, legitimation or adoption. Appellant’s arguments concerning the converse right of a biological parent to recover are obviously inappropriate to the facts of this case.

Mrs. Woodard testified: “Darien was the only child we had.” Therefore, according to OCGA § 19-7-20 (c), the presumption is that Darien was the legitimate child of Alton Woodard, his reputed father. This enumeration is without merit.

7. Finally, Penney urges the trial court erred in entering a judgment against appellant Penney which included prejudgment interest, pursuant to OCGA § 51-12-14.

Penney’s liability for the claim is limited by contract to $100,000, the limit of the policy coverage; but OCGA § 51-12-14 allows prejudgment interest on an amount claimed as unliquidated damages in a tort action. Although this was an action in tort, the extent of liability is governed by the insurance contract. But, applying OCGA § 51-12-14 to this case, where the verdict exceeded the policy limit, we clearly see these damages are not “unliquidated,” but by contract were “liquidated” as the ultimate liability for $100,000. Moreover, this fulfills Penney’s entire contract obligation, which this statute cannot increase.

Decided February 17, 1989

Rehearing denied March 13, 1989

Hugh F. Newberry, George A. Haas, for appellant.

William C. Lanham, Clark H. McGehee, for appellees.

We see no reason to reverse the judgment below, on condition that the trial court should make certain the prejudgment interest awarded against Penney is awarded only to the extent of Penney’s liability ($100,000) before final judgment on remittitur.

Judgment affirmed on condition.

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


author: McMurray, Presiding Judge.

text:
    A89A0069.
    SCOTT v. THE STATE.
    (380 SE2d 288)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offenses of driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)); no driver’s license (OCGA § 40-5-20); driving on the wrong side of the road (OCGA § 40-6-40); leaving the scene of an accident (OCGA § 40-6-270); and, no insurance (OCGA § 33-34-12). Held:

1. Defendant’s first two enumerations of error contend the State failed to present sufficient evidence that defendant was the driver of one of two vehicles involved in a head-on collision. Witness Williams was driving immediately behind the second car involved in the collision, driven by Schaaf. After the collision witness Williams quickly ran to Schaaf’s car to check on her condition. At that point witness Williams saw the defendant standing behind the open driver’s door of the vehicle that had run head-on into the car driven by Schaaf. Witness Williams also stated that defendant approached Schaaf, as a passenger in defendant’s vehicle ran from the scene, and defendant told Schaaf, “ T hope you have good insurance.’ ” Witness Williams told the defendant that he (defendant) was the one who needed insurance. The defendant then turned and ran from the scene. Subsequently, defendant, Thornton (a passenger in the vehicle driven by defendant), and Levant, the owner of the vehicle driven by defendant, were transported to the scene by a police officer. At the scene, Thornton stated to a police officer that he was in the car with defendant and that defendant had been driving. At trial, Thornton denied having told the police that the defendant was driving and that neither he nor defendant had been in the vehicle or closer than a nearby convenience store.

Decided February 21, 1989

Rehearing denied March 13, 1989

Barry R. Brown, for appellant.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

We find that the evidence was sufficient to enable any rational trier of fact to find proof beyond a reasonable doubt that defendant was the driver of the vehicle which collided with the vehicle driven by Schaaf. The evidence supported the verdict. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The proof that defendant was driving is supplied by the prior inconsistent statement of Thornton and corroborated by the testimony of Williams. See Brown v. State, 175 Ga. App. 246 (1), 247 (333 SE2d 124) and Weeks v. State, 187 Ga. App. 307 (1), 308 (370 SE2d 344).

2. Defendant also enumerates as error the trial court’s charging the jury as to the affirmative defense of alibi. However, following defendant’s objection to the alibi charge, it was withdrawn by the trial court and the jury told to disregard the complained-of charge. Under these circumstances there was no merit in an enumeration of error complaining of the withdrawn charge. Jones v. State, 246 Ga. 109, 111 (5), 112 (269 SE2d 6).

Defendant’s further argument in connection with this enumeration of error suggesting improper comments to the jury by the trial court are not supported by the record which contains neither factual predicate nor indication of any objection at trial regarding these additional issues. West v. State, 178 Ga. App. 275 (2) (342 SE2d 756); Morrison v. State, 181 Ga. App. 440, 443 (352 SE2d 622).

Judgment affirmed.

Car ley, C. J., and Beasley, J., concur.


text:
    A89A0363.
    WOOD v. THE STATE.
    (380 SE2d 289)
   McMurray, Presiding Judge.

Defendant was convicted of speeding and was given a $100 fine and a 30-day suspended sentence. Following the denial of his motion for new trial, defendant appealed. Held:

1. The citation issued to defendant was not completed for want of attestation. Assuming defendant timely demurred, we find no error requiring reversal. Defendant has not demonstrated that he was unable to prepare his defense or that he was prejudiced otherwise by the defect. Miller v. State, 182 Ga. App. 700 (356 SE2d 900). “Any error in failing to try him upon a ‘perfect’ uniform traffic citation was, thus manifestly harmless.” King v. State, 176 Ga. App. 137, 138 (2) (335 SE2d 439) (overruled on other grounds in Copeland v. White, 178 Ga. App. 644 (344 SE2d 436)).

Decided February 21, 1989

Rehearing denied March 13, 1989.

Melvin Wood, pro se.

James L. Webb, Solicitor, Richard Edwards, Assistant Solicitor, for appellee.

2. The testimony of the officer who stopped defendant was not secondary evidence. The officer’s testimony was properly admitted over defendant’s objection. Clarke v. State, 170 Ga. App. 852 (319 SE2d 16).

Judgment affirmed.

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


text:
    A89A0553.
    BOYLE v. STATE OF GEORGIA.
    (380 SE2d 57)
   McMurray, Presiding Judge.

Appellant, pro se, without complying with the provisions of OCGA § 5-6-35 which require an order of this court granting appellant’s application to appeal, filed his appeal from the order of the Superior Court of Chatham County, Georgia, denying his pro se motion to set aside the default judgment against him in a Libel for Condemnation of $1,111. Held:

OCGA § 5-6-35 (a) (6) mandates that an appeal from a judgment in the amount of $2,500 or less must be brought as a discretionary appeal. Vaughn v. Cable East Point, 185 Ga. App. 203 (363 SE2d 639); Rich v. McDonald Car &c. Leasing, Inc., 180 Ga. App. 613 (1) (349 SE2d 832); Perryman v. Ga. Power Co., 180 Ga. App. 259, 260 (2) (348 SE2d 762). Also, OCGA § 5-6-35 (a) (8) mandates that an appeal from a denial of a motion to set aside a judgment be brought as a discretionary appeal. See Byrd v. Byrd, 183 Ga. App. 302 (359 SE2d 2); Roach v. Roach, 182 Ga. App. 122, 123 (354 SE2d 877); Folks, Inc. v. Agan, 177 Ga. App. 480 (340 SE2d 26).

The requirements of OCGA § 5-6-35 are jurisdictional and this court cannot accept an appeal not made in compliance therewith. Accordingly, we must dismiss the appeal.

Appeal dismissed.

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

Decided February 10, 1989

Rehearing denied March 13, 1989

Douglas K. Boyle, pro se.

Spencer Lawton, Jr., District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.