text:
    A92A2246.
    MOORE v. THE STATE.
    (430 SE2d 115)
   Cooper, Judge.

Appellant was convicted of armed robbery and appeals from the entry of the judgment of conviction and sentence. He raises as his sole enumeration of error the trial court’s failure to suppress his confession.

Athens-Clarke County police responded to a call reporting an armed robbery in progress at a grocery store. They spotted a vehicle in the parking lot which matched the description of the perpetrator’s vehicle given by witnesses. After a high-speed chase, appellant was apprehended and taken back to the store for identification by several eyewitnesses. Appellant was then taken to the jail where he was read his Miranda rights, and he waived his rights in writing. During his interview with police detectives, he confessed to the armed robbery. Appellant verified the accuracy of the written transcription of the confession but refused to sign the confession based on the belief that an unsigned statement could not be used against him. Appellant moved the court to suppress the confession on the ground that he did not knowingly and voluntarily waive his Miranda rights before making it. Appellant argued that his refusal to sign the confession and his reason for not doing so demonstrated that he did not understand the written waiver because in spite of the waiver, he believed he retained the right against self-incrimination. Appellant also contended he was intoxicated and therefore unable to make a knowing, voluntary and intelligent waiver. The trial court denied the motion and admitted the confession at trial. In Aldridge v. State, 258 Ga. 75, 76 (3) (365 SE2d 111) (1988), a defendant sought to exclude statements made during custodial interrogation after Miranda warnings were given on the ground that the statements were not freely and voluntarily given because he did not sign a waiver of rights before talking to police. The court held that “[t]he refusal to sign a waiver of rights form before speaking to police does not render the statements involuntary and inadmissible. Once Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effect waived his rights. The refusal to sign a waiver form does not constitute an invocation of the right to remain silent or the right to counsel.” Id. Likewise, in the instant case, the record indicates that appellant’s confession was freely and voluntarily made after advice of Miranda rights and the signing of a written waiver, and appellant’s refusal to sign the confession did not prohibit its use at trial. Contrary to appellant’s belief, the police were not required to obtain another waiver of rights after the confession. Thus, the trial court did not err in finding that appellant’s confession was freely and voluntarily given despite his refusal to sign the statement.

Decided March 12, 1993.

W. McCall Calhoun, Jr., for appellant.

Harry N. Gordon, District Attorney, Jimmie E. Baggett, Jr., Assistant District Attorney, for appellee.

During the Jackson-Denno hearing, in addition to hearing from the police officers who testified as to the voluntariness of appellant’s confession, appellant testified that he was intoxicated during the interrogation; that he did not read the printed form which contained the Miranda warnings or the waiver; and that he did not recall the police reading the rights to him. Despite this testimony, in its denial of the motion to suppress, the trial court resolved the conflict in the evidence in favor of the State’s witnesses and found “from a preponderance of the evidence that the Defendant was advised of his Miranda rights, that he understood them, and he voluntarily waived them; that he thereafter gave his statement freely and voluntarily without any hope of benefit and without the remotest fear of injury.” “ ‘A trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless they are found to be clearly erroneous. (Cit.)’ [Cit.] Since the evidence supports the finding of the trial judge in the instant case, [appellant’s] statement was properly admitted.” Price v. State, 201 Ga. App. 435, 436 (1) (411 SE2d 343) (1991).

Judgment affirmed. McMurray, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A2271.
    McCORMICK v. THE STATE.
    (429 SE2d 170)
   Birdsong, Presiding Judge.

David Hobson McCormick appeals his convictions for armed robbery and possession of a firearm in the commission of a felony. The only error asserted is that the trial court erred by permitting his statements and confessions made to a Georgia Bureau of Investigation agent and to a sheriff’s department investigator to be presented to the jury, since the trial court did not make a specific finding that by a preponderance of the evidence the confession was freely and voluntarily given and, under these circumstances, the warnings required under Miranda v. Arizona were given and voluntarily waived. Held:

At the Jackson-Denno hearing to consider McCormick’s statements, a GBI investigator and a sheriff’s investigator each testified they, on separate occasions, warned McCormick of his right to counsel and right to remain silent and McCormick had not exercised those rights. They both also testified they did not threaten or coerce McCormick and did not promise him hope of benefit for making a statement or promise him leniency, and also testified that McCormick did not appear to be under the influence of intoxicants or drugs. Further, they presented to the court written statements signed by McCormick and each agent that stated those rights had been explained to him, that he understood his rights, that he wanted to make a statement, and that he had not been threatened, nor promised anything, nor forced in any way to make a statement. Finally, they both testified that McCormick was not in custody and was free to leave. McCormick did not challenge this testimony in any fashion. The trial court found that both statements could be presented to the jury and later in its charge instructed the jury on its responsibilities before the jury could consider the statements.

We find no error. Although the trial court did not use the specific language McCormick would desire, the trial court’s ruling that the statements could be presented to the jury implicitly contained these findings. Cf. Hammond v. State, 157 Ga. App. 647, 648 (2) (278 SE2d 188). Moreover, the trial court’s findings that McCormick had been properly warned of his rights and that he was not in custody at the time of his statements are supported by the record. “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. The question of whether or not a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous. The trial court’s ruling was not clearly erroneous.” (Citations and punctuation omitted.) Brown v. State, 259 Ga. 453, 454 (383 SE2d 882). See Carter v. State, 257 Ga. 510, 513 (361 SE2d 175); Durden v. State, 250 Ga. 325, 327 (297 SE2d 237); Thaxton v. State, 184 Ga. App. 779, 781 (362 SE2d 510). Therefore, any error occasioned by the failure to make specific findings was harmless.

Judgment affirmed. Beasley and Andrews, JJ., concur.

Decided March 12, 1993.

Thompson, Fox, Chandler, Homans & Hicks, David A. Fox, for appellant.

C. Andrew Fuller, District Attorney, Mark W. Alexander, Donald E. Henderson, Assistant District Attorneys, for appellee.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A2320.
    MAJOR v. ALLSTATE INSURANCE COMPANY.
    (429 SE2d 172)
   Birdsong, Presiding Judge.

Marie Major appeals from the grant of summary judgment to Allstate Insurance Company on her claim for uninsured motorist coverage benefits under her son’s Allstate automobile insurance policy. The record shows that Major was standing behind her son’s car when another car hit her.

The issue presented is whether Major is entitled to benefits under uninsured motorist coverage of a policy pertinently defining an insured person as-follows: “Persons Insured: (1) You [the named insured] and any resident relative. (2) Any person while in, on, getting into or out of your insured auto with your permission. (3) Any other person who is legally entitled to recover because of bodily injury to you, a resident relative, or an occupant of your insured auto.” The record shows the only question is whether Major is entitled to recover under subparagraph (2).

The trial court found there were no cases interpreting language as in subparagraph (2), looked to cases construing “entering into,” in the context of personal injury protection coverage (see Floyd v. J. C. Penney Cas. Ins. Co., 193 Ga. App. 350 (387 SE2d 625); Cole v. New Hampshire Ins. Co., 188 Ga. App. 327 (373 SE2d 36), and found there was no coverage because Major was not in the act of entering the vehicle when she was hit. Held:

1. Since the policy provides coverage to persons “in, on, getting into or out of’ the vehicle as well as persons using the vehicle and guests in the vehicle, the Allstate policy provides broader coverage than that required under our law for this class of persons. See OCGA § 33-7-11 (b) (1) (B): “any person who uses, with the expressed or implied consent of the named insured, the [insured vehicle]” and “a guest in such motor vehicle.” Of course, Allstate may provide greater coverage than the law requires. See Standard &c. Ins. Co. v. Davis, 145 Ga. App. 147, 152 (243 SE2d 531).

Major contends the trial court erred by granting summary judgment to Allstate because genuine and material factual issues exist over whether Major was “getting into” the automobile within the meaning of the policy, and also erred by granting summary judgment to Allstate because the policy provision is ambiguous.

We do not find this provision to be ambiguous. Ambiguity is “ ‘duplicity, indistinctness, an uncertainty of meaning or expression.’ ” Tarbutton v. Duggan, 45 Ga. App. 31 (5) (163 SE 298). A word or phrase is ambiguous when “it is of uncertain meaning and may be fairly understood in more ways than one.” (Punctuation omitted.) Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (381 SE2d 322). Further, words in a contract have their usual and common meaning. QCGA § 13-2-2 (2); Griffin v. Adams, 175 Ga. App. 715, 716 (334 SE2d 42). Therefore, we must look to the usual and common meaning of these words, and not a meaning based upon some extreme or unusual definition. Since “getting” is the present participle of “to get,” we must look to the usual and common meaning of “to get into.” The test is not what Allstate intended the words to mean, but what a reasonable person would understand them to mean. Nationwide Mut. Fire Ins. Co. v. Collins, 136 Ga. App. 671, 675 (222 SE2d 828). In addition to the virtual universal meaning of “get in a car” as putting one’s self inside the vehicle, we also found these meanings: “to enter” (Webster’s Encyclopedic Unabridged Dictionary of the English Language) or “to make or effect an entrance” (Webster’s Third New International Dictionary). Further, “enter” is defined in Webster’s New International Dictionary (2d ed.) (unabridged) (1961) as to go into; to pass into the interior of; to pass within the outer cover or shell of. We conclude that it requires direct physical contact between the claimant and the insured vehicle attendant to gaining entry to the vehicle, or the claimant actually having placed a portion of his/her body in the vehicle. While not enunciating a standard, the court in Cole, supra, implicitly applied to the facts of that case a standard similar to the one we have set forth today. We note that the act of entering a vehicle is distinguished from the act of approaching the vehicle, as well as from the act of preparing to enter the vehicle.” (Citations and punctuation omitted.) Floyd v. J. C. Penney Cas. Ins. Co., supra at 351. Although Cole and Floyd concern personal injury protection coverage, we see no useful purpose in having two definitions for terms describing the same physical act. Further, we have not found, and Major has not offered, a commonly accepted definition of “to get in” or “getting in” a car which would encompass her activities at the time she was struck, i.e., standing next to the rear corner of the car near the passenger side.

Therefore, the trial court did not err in its interpretation of the contract, and as this is a question of law for the court (OCGA § 13-2-1; Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 880 (285 SE2d 566)), the trial court also did not err by not submitting this issue to the jury.

Decided March 12, 1993.

' Crawford & Hinesley, William F. Hinesley III, Robert H. Zip perer, for appellant.

2. Major also contends the trial court erred by granting summary judgment because issues of fact remain. Examination of the record, however, shows that no issue of material fact exists. There is no question about whether Major was entering or getting into the car because both Major and the driver of her car testified at deposition that they were both standing at the rear of the car after they had placed packages in the trunk. Accordingly, this enumeration of error is without merit.

Judgment affirmed. Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur but take into account another aspect of the language in the contract that is not discussed. That is the aspect of time. Contractually there is coverage for “[a]ny person while . . . getting into . . . [the covered vehicle].” The word “while” refers to “a period of time . . .; the time during which an action takes place or a condition exists . . .; the time at which an event takes place. . . .” Webster’s Third New International Dictionary (unabridged). So the question is whether Ms. Major was hit and injured while getting into the car.

The rules of construction are somewhat different than applied in Floyd v. J. C. Penney Cas. Ins. Co., 193 Ga. App. 350 (387 SE2d 625) (1989), and in Cole v. New Hampshire Ins. Co., 188 Ga. App. 327 (373 SE2d 36) (1988), because the court was in those cases construing statutory language. Here, the contractual language is “liberally construed in favor of the object to be accomplished and in favor of the insured except when the language is so unmistakably clear and unambiguous as to allow but one meaning.” Raynor v. American Heritage Life Ins. Co., 123 Ga. App. 247, 249 (180 SE2d 248) (1971); Simmons v. Select Ins. Co., 183 Ga. App. 128 (2) (358 SE2d 288) (1987).

Nevertheless, even liberal construction could not embrace a finding that Ms. Major was hit “while getting into” the car. Her testimony was that when she was hit she intended “to go into the door to get into the car, but I didn’t get there” and that she had closed the trunk door “and then I was fixing to get in on the other side of the car.” In her brief she states that she “was preparing to enter” the vehicle. Thus it is without dispute that she was not hit “while” getting into the car; the period of time for that action to occur had not yet commenced.

Barrow, Sims, Morrow & Lee, R. Stephen Sims, Stacey L. Ferris-Smith, for appellee.


author: Cooper, Judge.

text:
    A92A2336.
    EMORY UNIVERSITY et al. v. DORSEY et al.
    (429 SE2d 307)
   Cooper, Judge.

This appeal arises out of an action against appellants, a physician and hospital, for medical malpractice and wrongful death. The lawsuit was brought by appellees, the deceased’s parents, as executors of the deceased’s estate and as the adoptive parents of the deceased’s minor child. Following the denial of appellants’ motion for partial summary judgment, we granted this interlocutory appeal to consider whether the minor child can maintain a wrongful death action when the deceased died leaving a surviving spouse and whether the child’s subsequent adoption operates to divest the child of a cause of action for wrongful death.

In January 1987, the deceased, who was not married, gave birth to a son, Jordan, in California. A few months later, the deceased married Timothy Showens, who was not Jordan’s father, and moved back to Georgia where her parents lived. In February 1988, the deceased became ill and was hospitalized at appellant hospital and treated by appellant physician. While the deceased was in the hospital, Showens and Jordan lived with the deceased’s parents. The deceased died in March 1989 survived by both Showens and Jordan and left a will expressing her desire that Jordan be adopted by her parents so that he could be raised in a two-parent family. Approximately two weeks after the deceased’s death, Showens moved to New York and left Jordan with his grandparents, who adopted him in March 1990. Appellees subsequently filed this lawsuit for medical malpractice and wrongful death against appellants. Appellants each filed motions to dismiss or in the alternative for partial summary judgment, contending therein that no action could be maintained by the minor child for the wrongful death of his mother. The trial court found that the child’s right to bring the wrongful death action vested at the moment of his mother’s death and did not divest upon his subsequent adoption by his grandparents. The trial court also exercised its general equitable powers to allow the child to bring the wrongful death action despite the existence of a surviving spouse.

1. Appellants first argue that the adoption of the child by appellees terminated any right the child may have had to bring an action for wrongful death. Appellants rely on Eig v. Savage, 177 Ga. App. 514 (339 SE2d 752) (1986) and Johnson v. Parrish, 159 Ga. App. 613 (2) (284 SE2d 111) (1981) for the proposition that Jordan’s adoption by appellees severed any right he had to bring the wrongful death action. However, in both of those cases, the adoption occurred prior to the death of the natural parent. The relevant time for determining whether a cause of action for wrongful death exists is when the death of the person occurs. Garvin v. Lovett, 131 Ga. App. 46 (1) (205 SE2d 124) (1974). At the time of the deceased’s death, Jordan was the legal child of the deceased as the parental relationship had not been terminated through adoption or any other proceeding. Appellants unconvincingly argue that it should make no difference whether the adoption occurs prior to or subsequent to the death of the natural parent. We do not agree. An adoption which occurs subsequent to the death of a natural parent should not terminate a cause of action for the wrongful death of the parent. To hold otherwise would not foster the public policy of encouraging adoptions, particularly in cases such as this one where the child is rendered an orphan. Consequently, we hold that to the extent that Jordan is otherwise entitled to recover under the wrongful death statute, his adoption after his mother’s death does not bar that recovery.

2. We next address appellant’s contention that Jordan is not entitled to bring an action under OCGA § 51-4-2 because the deceased left a surviving spouse. OCGA § 51-4-2 (a) provides: “The surviving spouse or, if there is no surviving spouse, a child or children . . . may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.” In Mack v. Moore, 256 Ga. 138 (345 SE2d 338) (1986), the Supreme Court of Georgia recognized that a surviving spouse who brings an action for wrongful death acts both as an individual and as a representative of any children of the deceased. Five months after Mack, the Supreme Court in O’Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373 (349 SE2d 382) (1986) reiterated this language in Mack and upheld a trial court’s ruling that the cause of action for wrongful death vested in the surviving spouse and not in the children of the deceased. In a special concurrence, Justice Weltner noted that although the statute vests the cause of action in the surviving spouse, that should not operate to interfere with a superior court’s exercise of its “general equitable powers to supervise litigation pending before it in such a manner as fairly shall protect the substantive and procedural rights of any party at interest.” O’Kelley, supra at 374. In a more recent case, Brown v. Liberty Oil &c. Corp., 261 Ga. 214 (403 SE2d 806) (1991), minor children brought an action for the wrongful death of their mother. Relying on Mack and O’Kelley, the trial court dismissed the children’s complaint. The Supreme Court noted that the surviving spouse of the deceased had abandoned the children, could not be located and would not, in any event, pursue a claim for wrongful death. The Court held that those factual circumstances demanded that the superior court exercise its equitable powers to preserve the rights of the minor children and allow them to maintain the wrongful death action. Id. at 216.

Decided March 12, 1993.

Long, Weinberg, Ansley & Wheeler, J. M. Hudgins IV, Stephen H. Sparwath, Paul L. Weisbecker, Allen & Peters, Hunter S. Allen, Jr., Gary R. McCain, Dennis A. Elíseo, for appellants.

Moore & Moore, W. Newton Moore, Elisa A. Roberts, for appellees.

We find equally compelling reasons for the superior court’s exercise of equitable powers in this case. The evidence reflects that Showens left the State shortly after the deceased’s death with no intention of pursuing a wrongful death action. There was no blood or legal relationship connecting Showens and Jordan, and Showens left the child with appellees without an adequate remedy at law. Under these factual circumstances, we conclude that the superior court properly exercised its equitable powers by allowing the minor child to bring the action for the wrongful death of his mother. See Brown, supra.

Judgment affirmed. McMurray, P. J., and Blackburn, J., concur.


text:
    A92A2410.
    TRAVITT v. GRAND UNION COMPANY.
    (429 SE2d 309)
   Birdsong, Presiding Judge.

Jacqueline Travitt appeals from a judgment based upon a jury verdict in favor of The Grand Union Company d/b/a Big Star (“Big Star”) and from the denial of her motion for a new trial. The record shows Travitt sued Big Star for damages arising from an incident in which she and a Big Star employee pulling a produce cart collided. Who ran into whom, the force of the collision, and the extent of Travitt’s injuries were contested issues at trial.

Travitt contends the trial court erred by charging the jury on the defense of unavoidable accident, by allowing defense counsel to cross-examine a physician on various periodicals and learned treatises, by allowing defense counsel to examine and cross-examine witnesses about an “offer of compromise” letter concerning Travitt’s claim arising from an automobile accident, by refusing to give Travitt’s request to charge concerning pre-existing conditions, and by denying Travitt’s motion for a new trial based upon the general grounds. Held:

1. Travitt contends the trial court erred by charging the jury on the defense of accident because there was no evidence authorizing the charge. She asserts the evidence showed that when the collision occurred she was standing in an unobstructed aisle looking at several kinds of fruit. Further, she asserts she had been standing in the same place for at least 30 seconds when she was struck by the employee pulling a heavy produce cart. Travitt admits she saw the employee just before he hit her, but she alleges the evidence showed the employee was walking backward, pulling the cart behind him. She asserts the force of the blow was strong enough to knock the wind out of her and the cart also struck her on the foot. She further contends the evidence showed the employee was using a large cart that was more difficult to control, even though using the large cart meant he had to pull the cart with his back to the direction of his travel. Moreover, the Big Star employee testified that it was his fault that he bumped into Travitt.

Conversely, Big Star contends the evidence shows its employee pushed the cart through some doors at the back of the store and did not see anyone in the aisle other than a man some 50 feet away. The employee testified that as the cart “wandered a bit” he turned it around, pulling it with one hand while looking backward while walking with it. According to Big Star it was safer to pull this cart than it was to push it, and although the employee was walking sideways, he was looking in his direction of travel over his left shoulder. The employee contends he pulled the cart for about six feet before he slightly bumped into Travitt, and he denies that he knocked the breath out of Travitt. Big Star acknowledges that its employee testified that while the collision was his fault, it was not done on purpose.

“The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error.” Chadwick v. Miller, 169 Ga. App. 338, 344 (312 SE2d 835). Applying that test to this case, the charge was not authorized. Although the parties each seek to place the responsibility for the collision on the other, one of them was responsible for this collision. This was not an event that was caused by unexpected and unforeseen mechanical failure or unexpected and unforeseen weather conditions or natural events. Here, the only explanation for this event is that one or both parties were negligent and collided with the other. Employees are expected to engage in activities so as not to injure the customers (see, e.g., Big Apple Super Market v. Briggs, 102 Ga. App. 11, 14 (115 SE2d 385)), and invitees are expected to exercise ordinary care for their safety. See Chisholm v. Fulton Supply Co., 184 Ga. App. 378, 379 (361 SE2d 540). It was the jury’s responsibility in the face of the conflicting testimony to determine who was negligent and whose negligence proximately caused the collision. Accordingly, since the charge on accident was not authorized, a new trial is required (Battle v. Kovalski, 202 Ga. App. 471, 472 (414 SE2d 700)), and, thus, the trial court erred by denying Travitt’s motion for new trial.

Decided March 12, 1993.

Davidson & Fuller, William M. Davidson, for appellant.

Greene, Buckley, Jones & McQueen, Harold S. White, Jr., Margaret L. Milroy, for appellee.

Of course, after January 21, 1993, charges on accident are no longer authorized in this state. Tolbert v. Duckworth, 262 Ga. 622, 624 (423 SE2d 229).

2. Regarding Travitt’s enumeration of error concerning the cross-examination through the use of periodicals and learned treatises, there was no error. Mize v. State, 240 Ga. 197, 198 (240 SE2d 11); Brannen v. Prince, 204 Ga. App. 866 (421 SE2d 76) (physical precedent).

3. We also find no error in the trial court’s allowing Big Star to use the factual assertions contained in the letter from Travitt’s attorney to the insurance company regarding settlement of the claim arising from the automobile accident. Wilbanks v. Wilbanks, 238 Ga. 660, 662 (234 SE2d 915); Computer Communications Specialists v. Hall, 188 Ga. App. 545, 546 (373 SE2d 630). Contrary to Travitt’s assertion, OCGA § 24-3-37 does not prohibit use of factual matters contained in such letters. Additionally, since these factual representations were made by Travitt’s attorney within the scope of his representation, these matters were admissible. OCGA §§ 24-3-32; 24-3-33; Locklear v. Morgan, 127 Ga. App. 326, 327 (193 SE2d 208). Whether the facts in the letter were misused in specific instances of cross-examination present issues governed by the general rules of cross-examination which, upon the new trial, the trial court can be expected to rule upon properly if raised by timely objection.

4. We find no error in the trial court’s refusal to give Travitt’s requested charge regarding pre-existing conditions since its substance was covered elsewhere in the charge. Cohran v. State, 141 Ga. App. 4, 5 (232 SE2d 355).

Judgment reversed. Beasley and Andrews, JJ., concur.


author: Carley, Presiding Judge.

text:
    A92A1894.
    WORLD INSURANCE COMPANY v. BLALOCK.
    (429 SE2d 276)
   Carley, Presiding Judge.

The late Mr. Roy Blalock brought suit, alleging that appellant-defendant afforded him health insurance coverage as to certain medical expenses. Appellant answered, denying coverage and, after discovery, moved for summary judgment. Appellee-substitute plaintiff, in his capacity as Blalock’s executor, opposed appellant’s motion. The trial court denied the motion for summary judgment but certified its order for immediate review. Appellant applied for an interlocutory appeal and the instant case results from the grant of that application.

It is undisputed that appellant never issued a health insurance policy to Blalock. Compare Travillian v. Ga. Farm &c. Ins. Co., 182 Ga. App. 241 (355 SE2d 677) (1987); Falagian v. Leader Nat. Ins. Co., 167 Ga. App. 800 (307 SE2d 698) (1983); Morris v. Aetna Life Ins. Co., 160 Ga. App. 484 (287 SE2d 388) (1981); Life & Cas. Ins. Co. of Tenn. v. Truett, 112 Ga. App. 338 (145 SE2d 84) (1965). Indeed, it is undisputed that appellant rejected Blalock’s application for a policy. The sole contention is that appellant nevertheless afforded coverage pursuant to the terms of a conditional receipt provided to Blalock at the time he applied for coverage. By its express terms, however, the conditional receipt provided no coverage to Blalock until appellant was “satisfied that, at the time of completing . . . the application . . ., [Blalock was] insurable under [appellant’s] rules. . . .” In Georgia, it is clear that an insurer incurs no contractual liability under such a conditional receipt until it has made an affirmative determination as to the insurability of the applicant. “[I]t depended upon the stated conditions whether any insurance was provided by the receipt.” W. O. W. Life Ins. Society v. Etheridge, 223 Ga. 231, 235 (154 SE2d 369) (1967). “That is, the determination of insurability was a condition precedent to a determination that coverage existed. [Cit.]” McCullers v. Auto-Owners Life Ins. Co., 771 F2d 1491, 1493 [1] (11th Cir. 1985) (construing Georgia law). “Where, in consideration of a payment made to an insurance company of a certain stipulated amount of money as a premium for . . . insurance, the company agrees that upon the approval at the home office of the application for the issuance of the policy, the company will, in the event of [an insurable occurrence] prior to the issuance of the policy, pay . . . the amount of the insurance which would have been due had the policy been issued, there arises no contract of insurance in the absence of an approval of the application at the home office.” Hill v. Life & Cas. Ins. Co., 51 Ga. App. 578 (1) (181 SE 104) (1935). See also Smith v. Metropolitan Life Ins. Co., 76 Ga. App. 229 (45 SE2d 471) (1947). “ ‘While it is true that in the Hill and Smith cases, supra, the receipt required approval “at the home office of the company,” the application and receipt now under consideration are not rendered ambiguous because they do not contain such a statement. Clearly, under both the application and the conditional receipt, the company must be satisfied of the insurability of the applicant and that applicant was a risk acceptable to the company under its rules.’ ” Maddox v. Life & Cas. Ins. Co. of Tenn., 79 Ga. App. 164, 172-173 (3) (53 SE2d 235) (1949).

Decided March 3, 1993

Reconsideration denied March 16, 1993

McClure, Ramsay & Dickerson, John A. Dickerson, for appellant.

Stewart, Melvin & House, William H. Blalock, Jr., for appellee.

The instant application and conditional receipt would only constitute an enforceable contract of insurance “when and if the application [was] completed by the approval of [appellant] and [Blalock was] found to be insurable for the amount and plan applied for as a standard risk.” W. O. W. Life Ins. Society v. Etheridge, supra at 236. It is undisputed that that event never occurred. It follows that the trial court erred in denying appellant’s motion for summary judgment. “Under Georgia law, a ‘Conditional Receipt’ is simply that: conditional. Coverage is conditional upon the approval of the risk by the home office. Until approval is given, . . . full coverage under the policy does not exist.” McCullers v. Auto-Owners Life Ins. Co., supra at 1495 [2].

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


author: Blackburn, Judge.

text:
    A92A1942.
    FIRST NATIONAL BANK OF GAINESVILLE v. LOGGINS.
    (429 SE2d 278)
   Blackburn, Judge.

The appellee, Sandra G. Loggins, brought an action against Nationwide Mutual Fire Insurance Company (“Nationwide”), for an unjustified refusal to pay her claim for fire loss and against First National Bank of Gainesville, Georgia (“the bank”), for wrongful foreclosure, wrongful seizure and application of funds maintained in her checking account with the bank, fraud and violation of the state’s banking regulations. Both Nationwide and the bank responded. Nationwide subsequently filed a motion for summary judgment asserting that the appellee’s claim against the company was time barred based upon a statute of limitation contained within the insurance policy. The bank also moved for summary judgment, maintaining that the appellee was in default on the loan; therefore, their foreclosure on the property was proper and the foreclosure proceeding was not in violation of any banking regulations. The trial judge denied both motions. Nationwide has not sought an appeal of the trial court’s denial of its motion for summary judgment. We granted the bank’s application for interlocutory appeal of the trial court’s denial of its motion for summary judgment.

The record shows that on October 16, 1987, the appellee and her then husband, Don Loggins, obtained a $55,000 construction loan from the bank and signed a single-payment note for repayment as well as a deed to secure the debt in favor of the bank. On December 22, 1987, the appellee and her husband increased the loan amount to $60,000. The initial due date on the loan was March 22, 1988. However, the loan was subsequently renewed on March 15, 1988, and October 10, 1988, by the appellee and her husband executing new notes, with the last note being due and payable on April 10,1989. The house was completed in December 1988. In February 1989, as a result of their divorce, the appellee’s husband quitclaimed his interest in the property to the appellee, although the deed was not filed until August 16, 1989. On May 1, 1989, the due date on the note was extended by the bank to August 30, 1989, based upon a telephone request of the appellee to William Glosson (Glosson), the assistant vice president of the bank.

The appellee’s home was damaged by fire on August 30, 1989, and the appellee did not pay the principal and interest on the loan by its due date of August 30, 1989. According to Glosson’s affidavit, the note went into default on August 31, 1989. Glosson maintains that the appellee was mailed foreclosure notices and a copy of the advertisement of the sale that was published in the local newspaper. He admits that after the account went into default, pursuant to the terms of the checking agreement, the bank offset funds from the appellee’s checking account and applied the money to the interest balance on the loan on the property as well as another loan that the appellee had with the bank that was in default. The bank purchased the property at the foreclosure sale for $30,000, and whether the property was appraised by the bank before the sale is in dispute. On January 19, 1990, the bank received payment of $54,664.73 from Nationwide and applied it to the appellee’s indebtedness, which created an overage, the amount of which is also in dispute.

In her deposition of January 22, 1991, the appellee testified that she did not become aware of any foreclosure proceedings until she received a telephone call from her mother who saw the foreclosure notice in the newspaper. After the fire, she moved to a motel and subsequently moved in with her present husband. In both her affidavit and deposition testimony, the appellee maintains that during her conversations with Glosson after the fire, she was informed that her property would not be foreclosed upon and she should not worry. He further told her that the insurance proceeds would settle all matters of indebtedness and if she had her attorney talk with him and show him that a claim had been filed with Nationwide, he would stop the foreclosure proceeding. She subsequently informed her attorney of her conversation with Glosson.

In Glosson’s affidavit of January 23, 1992, he avers that computer-generated notices were sent to the appellee and her former husband notifying them of the default at their last known address. During his conversations with the appellee after the fire, he informed the appellee of the bank’s intention to pursue its remedies. After foreclosure proceedings began, the note was placed in a non-interest earning status. He admits that notices sent out to the appellee in November 1989 were in error because they showed that nothing was due on the principal of the note but interest was shown as being due on the note. However, Glosson asserts that appellee was provided notice of the foreclosure sale in a letter of November 3, 1989, and a copy of the advertisement of such in the local paper. On November 13, 1989, a certified letter was sent to the appellee at the property in question providing the appellee with ten days notice of payment of the principal, interest, and attorney fees on the loan. As a result of the appellant’s foreclosure on the appellee’s property and seizure of funds maintained in her account with the appellant bank, this action ensued.

In its sole enumeration of error, the bank contends that the trial court erred in denying its motion for summary judgment. We disagree.

In its order of April 15, 1992, denying the bank’s motion for summary judgment, the trial court found several issues existed as to whether the note executed by the appellee to the bank was in default, whether the appellant properly notified the appellee of proceedings relating to the foreclosure activities, and whether Nationwide properly settled with the bank. The court also noted that the appellee alleged both in her affidavit and deposition that she was assured by the bank vice president that her property would not be foreclosed upon.

“To prevail on a motion for summary judgment [under OCGA § 9-11-56], a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. [Cits.]” Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). “[T]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cits.]” Mitchell v. Rainey, 187 Ga. App. 510, 512-513 (370 SE2d 673) (1988). “[In] summary judgment proceedings the court is not in a position to weigh the evidence or determine its credibility. . . .” HOH Co. v. Ethridge, 168 Ga. App. 20, 22 (2) (308 SE2d 43) (1983). Where the facts alleged in the record create a conflict in the evidence, summary judgment is precluded. Ethridge, id. at 22.

Decided March 3, 1993

Reconsideration denied March 16, 1993

Stewart, Melvin & House, J. Douglas Stewart, for appellant.

Robert E. Andrews, for appellee.

In the case sub judice, we agree with the trial court that the facts as asserted in the depositions and affidavits in the record create a conflict as to whether the appellee was actually in default at the time that the property was foreclosed upon, whether Nationwide properly settled with the bank, and whether the appellee was properly notified of the foreclosure proceedings as provided in OCGA §§ 44-14-162 and 44-14-162.2. The determination of these issues is for the trier of fact. Accordingly, summary judgment adjudication was precluded and the decision of the trial court is without error.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A92A2005.
    SISK v. THE STATE.
    (429 SE2d 274)
   Andrews, Judge.

Defendant appeals his conviction of one count of aggravated child molestation and one count of child molestation.

Viewed in favor of the jury’s verdict, the evidence showed that, for about two months before the charged acts, Sisk had been dating Ms. Slaten, the great-aunt of C. C. and her brother A. C. Ms. Slaten had legal custody of the children and they called her their mother. C. C. was 11 years old and her brother was 13. A. C. had spent the night with Sisk at his trailer on four or five previous occasions, sometimes by himself. C. C. had spent the night with Sisk previously only once or twice, and only in the company of her brother.

On July 25, 1991, Sisk ate dinner with the children and Ms. Slaten at the Slaten home. After dinner, the children were playing on a trampoline outside when Sisk approached and told them that he would wash the dishes for them and ride bicycles with them if they would spend the night with him. They agreed. Later that evening, Ms. Slaten took Sisk and the children back to his trailer home. She assisted him in cleaning up the trailer, including making the bed in his bedroom. They all watched movies for awhile. After Ms. Slaten left, the children and Sisk continued to watch a movie. Sisk had taken a shower before sitting down to watch the movie. A. C. had previously seen the movie’s ending and, as it approached, he turned to tell Sisk and C. C. who had been sitting on the couch behind him. They were not there and A. C. looked down the hallway and saw his sister leaving Sisk’s bedroom.

C. C. testified consistently with her brother as to the sequence of events. She further said Sisk came out of the bath after his first shower wearing a pair of running shorts. He sat on the couch for a few minutes, then reached over and took her wrist and took her with him into the bedroom. Once there, he shut the door, took down her panties, committed oral sodomy on her and then penetrated her. He told her it would not hurt and not to tell. When she pulled her pants back on and left the bedroom, A. C. was standing at the bedroom door and asked what they were doing. She told him they had only been talking and went into the bathroom. A. C. noticed that the bed covers were messed up. When he went into the bathroom after she exited, he noticed a substance in the toilet bowl which he described as a “white worm.” A. C. described his sister as pale and nervous after this. Sisk then took another shower and went to bed.

After returning home the next day, A. C. again asked C. C. what had happened because she still looked pale and nervous and she told him. He told Ms. Slaten and she took C. C. to be examined at the hospital. There and several days later, C. C. told the Department of Family & Children Services’ representative and the deputy sheriff of the molestation. She signed a written statement on July 29,1991. She testified at the trial to these events and acknowledged that, a few days before the trial, she had lied and told Ms. Slaten she had made the story up because she wanted to make Ms. Slaten happy. At Ms. Slaten’s request, she also called a pastor and another relative and repeated this retraction to them.

Sisk testified and acknowledged the children stayed with him that night, although he said they made the proposal. He denied taking more than one shower and said he and C. C. only talked about family issues for about five minutes in his bedroom after she had followed him there while he was preparing to shower.

The doctor who examined C. C. found no physical evidence of intercourse, but stated that was not unusual.

The State filed its notice of intent to present evidence of similar crimes pursuant to USCR 31.1 on October 1, 1991, before the February 1992 trial. No written response was filed by Sisk. The hearing required by USCR 31.3 (B) was held immediately before the trial. The evidence allowed to be introduced was testimony by the arresting officer in the 1984 incidents which involved Sisk’s two nieces, aged four and five at the time. Sisk admitted in the written statement which he gave the officer that he had fondled each girl between her legs after they came out of his bathroom undressed. He pled guilty to two counts of child molestation.

1. There being evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crimes, denial of the motion for new trial on the general grounds was not error and the judgment is affirmed. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

2. Sisk’s first enumeration is that the court erred in allowing into evidence the prior child molestation conviction because it was “presented to the jury in violation of Rule 31.3 of the Uniform Superior Court Rules.”

The argument made in support of this enumeration cites only Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991), and is that the conviction should be reversed because “no determination was made on the record by the trial court that each of the three showings as required by Rule 31.3 . . . was met.”

At the pretrial hearing on this issue, the objection made was that “we would object to the introduction of such evidence as extremely prejudicial in this case. I don’t really see any probative value that it could have. These events [like acts] . . . took place seven years ago, ... I don’t think the circumstances are sufficiently similar to warrant introduction. . . .” Counsel then incorrectly stated that the State did not have to prove any “particular motive” and that motive was not an issue. OCGA § 16-6-4 (a) requires that the State prove the acts were done with the intent “to arouse or satisfy the sexual desires of . . . the person.” Staggers v. State, 120 Ga. App. 875, 876 (2) (172 SE2d 462) (1969).

Further, counsel asked the court, if it deemed the acts admissible, to allow in only the statement of Sisk and not the sentence imposed. The court then “granted the motion” of the State and also instructed the State not to introduce the sentence. The court then inquired of both parties, “Anything else before we bring the jury in?” Defense counsel responded “No, sir.” At the time the evidence was introduced before the jury, the only objection was the “renewal” of those previously made.

Decided March 2, 1993

Reconsideration denied March 16, 1993.

J. Tracy Ward, for appellant.

Jack O. Partain III, District Attorney, David W. McLeod, Assistant District Attorney, for appellee.

“Appellant’s sole objection in the trial court was that the prejudicial impact of the prior convictions on the jury outweighed the probative value thereof. In his brief on appeal, however, appellant urges only that the State [and the court] failed to make the affirmative showings [and rulings] required by Williams, [supra]. ‘(N)othing in . . . Williams suggests that the Supreme Court has determined to dispense with the long-standing rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court. ... In the absence of such an objection, however, any discussion of . . . Williams in the instant case is inappropriate.’ Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991).” McGaha v. State, 204 Ga. App. 248, 249 (2) (418 SE2d 802) (1992).

Judgment affirmed. Birdsong, P. J., concurs. Beasley, J., concurs as to Division 1 and in the judgment.

       Defendant was also charged and convicted as an habitual offender, OCGA § 17-10-7.

       C. C. described these acts in words appropriate to her age.

       The proof was in compliance with the requirements of Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991).


author: McMurray, Presiding Judge.

text:
    A92A2187.
    MARTIN v. McKENNEY et al.
    (429 SE2d 270)
   McMurray, Presiding Judge.

Carl H. McKenney and Mildred McKenney filed an action against B. T. Martin d/b/a B. T. Martin, Jr. Construction Company, alleging that they entered into a contract with Martin for the construction of a house; that Martin “failed and refused to erect the dwelling house in a timely fashion [; that Martin] erected [the house] at unreasonable and unnecessary costs [; that Martin] failed to supervise the project in a workmanlike mannerf; that Martin] failed to erect the same at a cost commensurate with the reasonable charges and expected charges for such construction, and [that Martin] negligently carried out his duties to supervise the . . . job and bring the same in at a reasonable cost.” The McKenneys sought damages in the amount of $136,906, alleging the house cost them “$136,906.00 . . . over the maximum amount that said dwelling would have cost had the defendant complied with his agreement and supervised the job in a proper and acceptable manner and in a nonnegligent fashion.”

Martin denied the material allegations of the complaint and counterclaimed, alleging that the McKenneys agreed to pay him “on a costs plus ten percent basis . . .” for construction of the house and that they owe him $24,721.42 for services, labor and materials provided on the construction project. The case was tried before a jury and the evidence revealed the following:

In January 1989, Carl H. McKenney offered Martin $7,500 to initiate construction of a house and detached garage on property owned by the McKenneys. Carl H. McKenney offered to pay for all labor and materials, but he did not mention a fee for Martin’s services. Martin accepted the $7,500 and began work on the project. Martin later gave Carl H. McKenney a written contract providing that Martin pay him on a cost plus ten percent basis. McKenney did not execute this agreement as it was his understanding that Martin would charge and be paid a fair and reasonable amount.

During construction, Martin periodically presented Carl H. McKenney with receipts for labor and materials. McKenney paid these bills without question. However, on April 13, 1990, Martin presented McKenney with a receipt for materials which McKenney could not immediately pay. Martin then withdrew from the construction project and later presented McKenney with a receipt for materials in the amount of $2,221.42 and a bill for services in the amount of $22,500. (The McKenneys had expended almost $300,000 for labor and materials at the time Martin withdrew.) McKenney refused to pay these bills and called in another contractor to finish the job. The new contractor finished the project for $84,446. (The fair market value of the house and garage after completion was $267,000.)

The jury returned a general verdict for the McKenneys in the amount of $55,621 and did not enter a verdict on Martin’s counterclaim. This appeal followed the denial of Martin’s motion for new trial. Held:

1. In his first enumeration of error, Martin contends the trial court erred in denying his motion for new trial, arguing the evidence was insufficient to support the jury’s verdict.

If a construction “contract was wrongfully breached or abandoned by the contractor without fault on the part of the owner, the measure of damages to the owner is the reasonable cost of completion, represented by the difference between the contract price and the reasonable and necessary cost to the owner to have the work done in accordance with the terms of the original contract. Palmer v. Howse, 133 Ga. App. 619 (212 SE2d 2) (1974).” Stowers v. Hall, 159 Ga. App. 501 (2), 502 (283 SE2d 714). In the case sub judice, neither Martin nor the McKenneys assert that a specific contract price was set for completion of the house and garage. Consequently, there is no basis for measuring additional costs, if any there be, stemming from Martin’s alleged abandonment of the project. However, there is evidence to support a finding that Martin’s substandard performance under the contract cost the McKenney’s more than the jury’s $55,621 verdict.

“As a general rule, a contractor is not entitled to additional compensation for extra work done or materials furnished, the necessity for which is caused by his own negligence or lack of skill. 17 C.J.S. 843, Contracts, § 371 (a).” Talerica v. Grove Park Plumbing Svc., 103 Ga. App. 591 (2) (120 SE2d 36). In the case sub judice, Louis E. Harper, Jr., an engineer and experienced builder, testified that he examined the McKenney house and garage after Martin walked off the job and determined that the value of the labor and materials provided by Martin was approximately $170,000. Harper testified that he examined the McKenneys’ plans and specifications and all change orders and determined that the total construction cost for the house and garage, including builder fees, should not have exceeded $267,000. Harper also testified that Martin left the job at a time when the house was “[approximately 60- to 65-percent complete.” This testimony and evidence that the McKenneys paid Martin approximately $300,000 for labor and materials is sufficient to authorize a finding that Martin breached an implied duty to perform services in a reasonable and skillful manner and that his failure to do so resulted in cost overruns exceeding the jury’s $55,621 verdict. See Talerica v. Grove Park Plumbing Svc., 103 Ga. App. 591 (2), supra.

2. Martin contends in his second enumeration of error that the “trial court erred in allowing counsel for plaintiff to argue matters in his concluding argument that were not in rebuttal to defense counsel’s argument.” This contention is without merit for the reasons stated in Dixon v. State, 196 Ga. App. 15, 18 (9) (395 SE2d 577).

3. Martin contends in his third enumeration that the trial court erred in allowing his deposition to be read in evidence after he testified extensively on cross-examination. This contention is without merit.

“Depositions upon oral examination of witnesses available to testify are admissible in the discretion of the trial court because of the opportunity by each party to thoroughly examine the witness at the taking of the deposition.” Atlanta Coca-Cola Bottling Co. v. Rosser, 250 Ga. 52, 54 (295 SE2d 827).

4. Next, Martin contends the “trial court erred in allowing plaintiff Carl H. McKenney to give his opinion as to whether [Martin] had a right to abandon the job.” This enumeration provides no basis for a new trial.

This court only corrects errors that have practically wronged the complaining party. Butts v. State, 198 Ga. App. 368, 370 (4) (401 SE2d 763). In the case sub judice, Carl H. McKenney testified: “I don’t think Mr. Martin had any reason for backing off of that job, no, sir.” It is highly unlikely that this comment affected the jury’s verdict. The statement simply summed up other testimony indicating McKenney’s view that Martin was not justified in quitting before the construction project was complete.

5. In his fifth and sixth enumerations, Martin contends the trial court’s instruction on severability was not adjusted to the evidence, arguing that the construction contract “was not an entire contract and was severable by its very nature.”

“ ‘The issue of the severability of a contract is determined by the intention of the parties, as evidenced by the terms of the contract. Code Ann. § 20-112 [now OCGA § 13-1-8]; Spalding County v. Chamberlin & Co., 130 Ga. 649, 654 (61 SE 533) (1908).’ Dozier v. Shirley, 240 Ga. 17, 18 (239 SE2d 343) (1977). ‘If it appears that the contract was to take the whole or none, then the contract would be entire. Clark, Con. 657.’ Broxton v. Nelson, 103 Ga. 327, 331 (30 SE 38) (1897); Dolan v. Lifsey, 19 Ga. App. 518, 519 (91 SE 913) (1917).” Horne v. Drachman, 247 Ga. 802, 804 (2), 805 (280 SE2d 338).

In the case sub judice, there is no dispute that the parties entered into an agreement for Martin to supervise construction of a house and garage for the McKenneys. Further, Martin testified that he was to perform these services on a cost plus ten percent basis. This evidence alone authorized the trial court’s charge on severability. See Barnes v. Goodner, 77 Ga. App. 448 (1a) (49 SE2d 128).

6. Martin contends in his seventh and eighth enumerations that the trial court erred in giving the following jury instruction: “[Wjhere a building contractor without justification fails to complete the work as agreed upon in the contract between the parties, and if you otherwise find under the charges that I have and will give you that the building contractor is entitled to compensation for the work that he did perform, then the amount of compensation to which such building contractor would be entitled would be limited to the reasonable value of the work actually done and completed at the time the builder abandoned the contract if you found it was abandoned.”

This court only corrects errors that have practically wronged the complaining party. Butts v. State, 198 Ga. App. 368, 370 (4), 371, supra. In the case sub judice, we fail to understand how Martin was injured by the trial court’s charge on quantum meruit recovery. This enumeration is without merit.

7. In enumeration nine, Martin contends the “trial court erred in failing to instruct the jury as to the measure of damages if they found that [he] was justified in leaving the job.”

Decided February 26, 1993

Reconsideration denied March 16, 1993

Reinhardt, Whitley & Wilmot, Glenn Whitley, for appellant.

John T. Croley, Jr., for appellees.

The trial court gave a general charge on damages for breach of contract as provided in OCGA § 13-6-2, but did not give instructions (pursuant to an oral request by Martin’s trial counsel) as to the measure of damages for early termination of a cost plus contract by the owner.

“ ‘ “[W]here there has been no written request to charge, failure to give the charge is not error. (Cits.)” (Cits.)’ Lamb v. State, 196 Ga. App. 665, 667 (3) (396 SE2d 497) (1990).” Bullock v. State, 202 Ga. App. 65, 66 (1) (413 SE2d 219). In the case sub judice, Martin failed to submit written requests for instructions as to the measure of damages for breach of a cost plus contract. Consequently, we find no error in the trial court’s failure to give such a charge. Compare First of Ga. Ins. Co. v. Worthington, 156 Ga. App. 588 (1a) (275 SE2d 87).

8. Contrary to Martin’s contentions in his tenth and eleventh enumerations, the trial court did not err in allowing the testimony of Louis E. Harper, Jr., regarding the reasonable value of labor and material provided by Martin on the construction project and the “reasonable cost of constructing the [McKenneys’] home.” Harper’s testimony was relevant to the allegation that Martin failed to perform the contract in a skillful and reasonable manner, i.e., that Martin failed to provide reasonably priced labor and materials and that Martin failed to skillfully manage said resources according to industry standards. See Talerica v. Grove Park Plumbing Svc., 103 Ga. App. 591 (2), supra.

Judgment affirmed. Cooper and Blackburn, JJ., concur.


text:
    A92A2342.
    BUTLER v. THE STATE.
    (429 SE2d 280)
   Carley, Presiding Judge.

In Butler v. State, 198 Ga. App. 217 (401 SE2d 43) (1990), appellant’s conviction was reversed on grounds which mandated a new trial. During the January 1991 term of the trial court, the remittitur was received by the clerk of that court. However, appellant’s case was not docketed for retrial during either that or the next succeeding term of the trial court. Thereafter, appellant moved for an acquittal based upon the State’s failure to have retried him during either the January 1991 or the next succeeding term of the trial court. Although appellant had never filed a demand for a speedy trial pursuant to OCGA § 17-7-170, he relied upon the following provisions of OCGA § 5-5-49 (a, b): “A case decided by the . . . Court of Appeals which is not finally disposed of by the decision shall stand for further hearing at the term next ensuing after the decision by the appellate court unless the lower court is in session when the decision is made, in which event it shall stand for trial during such term of the lower court. The clerk of the lower court, upon receipt of the remittitur of the appellate court, shall docket the case for trial in accordance [here] with. . . .” The trial court denied appellant’s motion for acquittal, but certified its order for immediate review. The instant appeal is before this court pursuant to the grant of appellant’s motion for an interlocutory appeal.

If appellant had ever filed a demand for speedy trial pursuant to OCGA § 17-7-170, he clearly would be entitled to an acquittal based upon the State’s failure to have retried him during either the January 1991 or the next succeeding term of the trial court. Ramirez v. State, 196 Ga. App. 11 (2) (395 SE2d 315) (1990). As noted, however, he did not file such a demand. Accordingly, the issue presented for resolution is whether a non-compliance with the provisions of OCGA § 5-5-49 will entitle appellant to exactly the same relief as would a noncompliance with the provisions of OCGA § 17-7-170.

Entirely unlike OCGA § 17-7-170, OCGA § 5-5-49 mandates no express sanction for a non-compliance with its provisions. The employment of the word “shall” “would indicate that [compliance with the provisions of OCGA § 5-5-49 is] mandatory. However, . . . ‘([1]language contained in a statute which . . . commands the doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act.’ [Cits.]” Sanchez v. Walker County Dept. of Family &c. Svcs., 237 Ga. 406, 410 (229 SE2d 66) (1976). See also Horkan v. Beasley, 11 Ga. App. 273 (1) (75 SE 341) (1912). Appellant has not shown “that any harm accrued to [him] as a result of the delay.” Hopping v. Cobb County Fair Assn., 222 Ga. 704, 706 (2) (152 SE2d 356) (1966). See also Israel v. Cofer, 152 Ga. App. 248, 249 (3) (262 SE2d 545) (1979). Compare Sanchez v. Walker County Dept. of Family &c. Svcs., supra at 410-411; In re B. A. P., 180 Ga. App. 433, 434 (1) (349 SE2d 218) (1986). Indeed, appellant has the same right as any other defendant who, having failed to invoke the provisions of OCGA § 17-7-170, nevertheless seeks a discharge based upon the failure of the State to have brought him to trial on pending criminal charges. He can seek dismissal of the criminal charges pursuant to the federal and state constitutional provisions which guarantee him a speedy trial. See State v. King, 137 Ga. App. 26 (222 SE2d 859) (1975).

Decided March 3, 1993

Reconsideration denied March 16, 1993

Gary R. Pelphrey, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

If the legislature had intended that a non-compliance with OCGA § 5-5-49 would result in the automatic acquittal of a defendant in a criminal case, it could have expressly provided for the comparable remedy afforded for a non-compliance with OCGA § 17-7-170. The legislature did not so provide, but merely directed that all cases, whether criminal or civil, are to be docketed for retrial within a certain time. To construe compliance with OCGA § 5-5-49 as a limitation of the authority of the trial courts, rather than as a mere direction to the clerks thereof, would deprive trial courts of jurisdiction over both criminal and civil cases which had been reversed on appeal unless the retrial was held within the indicated terms of court. In the absence of language clearly evidencing a legislative intent to effectuate such a broad divestiture of jurisdiction, OCGA § 5-5-49 must be construed as merely directory. “We will hold that the legislature intended nothing beyond what their language, in its fair and usual meaning, will indicate; and, if the terms of their enactment have not embraced the object contended for, the power is with them, by additional Act or Acts, to extend them.” Mayor &c. of Savannah v. Hartridge, 8 Ga. 23, 30 (8) (1850).

It follows that the trial court correctly denied appellant’s motion for acquittal. Having failed to invoke OCGA § 17-7-170, appellant must proceed under the provisions of the federal or state constitutions if he wishes to assert the untimeliness of his retrial as a ground for avoiding potential criminal liability.

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


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A92A2358.
    DUNN v. GOURMET OF MACON, INC.
    (429 SE2d 282)
   Blackburn, Judge.

Rosalyn Dunn brought suit against Gourmet of Macon, Inc., as owner and operator of Western Sizzlin’ Steak House, and Florence Knight, owner of the real property on which the restaurant building is located, seeking damages for injuries allegedly incurred when she slipped and fell while patronizing the restaurant. Defendant Gourmet of Macon, Inc. moved for and was granted summary judgment. Dunn appeals.

The record reveals that appellant fell after she stepped off the sidewalk leading to the restaurant into an irregularity in the parking lot pavement. The irregularity consisted of an unevenly-sloped depression in the pavement creating a shallow hole with a depth of one- and-one-half inches in which leaves, sand, and discarded cigarette butts had accumulated. Appellant’s deposition testimony reveals that she knew the depression was there and that it contained the debris; that the lighting was adequate for her to recognize that she was stepping into a hole with debris in it; and that she deliberately stepped in the hole notwithstanding her realization that it was different from the surrounding area. However, she deposed that contrary to her assumption that the depression was a uniform flat area, she discovered that it “is not level. It slopes downward, and I was not aware of the slope — the amount of the slope at that time.” She deposed that “apparently because of the debris, I did not recognize the slope of that part of the depression.”

Appellant does not suggest that she did not know the hole sloped; rather, she maintains that the presence of the debris prevented her from knowing the steepness and the extent of the declivity. Hence, appellant contends that despite her knowledge of the existence of the hole, the debris therein, and its sloped sides, that knowledge does not preclude her recovery because her ignorance of the precise slope of the declivity creates a fact question whether she fully appreciated the danger posed by the debris on the steeper-than-anticipated slope when she stepped in the hole. We do not agree.

This court has held that “it is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely [her] knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which [she] observes and avoids.” Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (288 SE2d 846) (1982). Telligman typifies the factual situation where that principle is applicable: although the plaintiff in Telligman knew of the general hazard created by the icy weather conditions prevailing at the time of her fall, that knowledge did not bar her recovery where the evidence reflected, inter alia, that she had no knowledge of the specific icy patch on which she fell. Accord Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477) (1986) (plaintiff’s knowledge of the general danger posed by a pile of construction debris did not constitute knowledge of the specific hazard created by the sharp object hidden in that debris which caused her injury). That principle is not applicable in the case at bar, however, because unlike the plaintiff in Telligman, appellant knew about the specific debris-filled hole into which she stepped and, unlike the condition in Atkinson, there was nothing in that debris-filled hole except more hole than appellant assumed.

“While we have recognized that ‘knowledge of the defect’ does not necessarily equal ‘knowledge of the danger,’ [cit.], ‘(t)he crucial question is whether (appellant) should have had a full appreciation of the danger, and in the exercise of ordinary care she should have avoided the injury to herself. . . . (Cits.)’. . . [Cit.]” Powell v. Woodridge Condo. Assn., 206 Ga. App. 176, 177 (424 SE2d 855) (1992). In Powell, plaintiff appreciated the danger posed by the possibility that the heel of her shoe could sink into one of the cracks and cause her to fall. Appellant’s argument that her knowledge of the debris-filled hole into which she was stepping did not mean she appreciated the danger posed by her foot slipping in the debris on the slope of that hole is analogous to that posed in Powell and likewise should be rejected. Given that appellant deposed that the lighting was adequate, the weather was clear, and there were no factors distracting her from exercising due care for her own safety, see id.; see also Hester v. Kroger Co., 202 Ga. App. 836 (415 SE2d 540) (1992), even when construed most favorably to appellant, the evidence demonstrates that “[w]hatever knowledge appellee may have had, it obviously was not superior to that of appellant.” Hester, supra. Since appellant’s knowledge of the hazardous condition presented by the debris-filled hole was at least equal to that of appellee, the grant of summary judgment to appellee was proper. See generally id.; Pierce v. Fieldale Corp., 194 Ga. App. 303 (390 SE2d 298) (1990).

Judgment affirmed. Pope, C. J., Birdsong, P. J., Carley, P. J., Beasley, Cooper, Andrews and Johnson, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

In my view, Gourmet of Macon, Inc. d/b/a Western Sizzlin’ Steak House, failed to carry its burden of showing that plaintiff’s knowledge of the defect was equal to or greater than its knowledge of the defect. Accordingly, I respectfully dissent.

On December 17, 1989, plaintiff Rosalyn Dunn went to dinner at the Western Sizzlin’ Steak House with her husband and son. The trio left the restaurant between 8:30 and 9:00 p.m., heading towards their car. Plaintiff’s husband and son walked along the sidewalk adjacent to the restaurant; plaintiff followed them, a few steps behind. Plaintiff decided to take a little more direct route to the car: She stepped off the sidewalk to the parking lot; all of a sudden, her feet went out from under her and she fell flat on her back.

Plaintiff deposed that she slipped on debris (sand, leaves, cigarette butts) which had accumulated in a depression in the parking lot. The depression was rectangular and was located between the sidewalk and a concrete parking curb. It was not evenly graded; rather, it sloped inward. In other words, it was somewhat deeper in the middle (about one-and-one-half inches deep) than on the sides.

Decided March 3, 1993

Reconsideration denied March 16, 1993

Reynolds & McArthur, Charles M. Cork III, for appellant.

Anderson, Walker & Reichert, Robert A. B. Reichert, Brown W. Dennis, Jr., for appellee.

Plaintiff further deposed that she intended to step carefully into the depression, realizing that it contained debris. She added that she did not see the depression as being “something that would cause [her] to slip as [she] did” and she did not comprehend “the total situation.” Thus, although plaintiff deposed that she was aware of the depression and debris, she made it clear that she did not fully appreciate the danger it presented — she did not know the depression sloped and that debris would be sliding on it.

“ ‘(I)t is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.’ [Cits.] Plaintiff knew of the [depression and debris] and knew that walking [on a depression can be] somewhat dangerous, but there is evidence that [she] did not know there was [a slope] underneath nor that the [slope and debris] caused a slippery condition.” Showalter v. Villa Prado Assoc., 182 Ga. App. 705, 706 (356 SE2d 895). See Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477). Thus, it cannot be said that plaintiff’s knowledge of the defect was equal to or greater than that of Western Sizzlin’.

In my view, the majority’s reliance upon Powell v. Woodridge Condo. Assn., 206 Ga. App. 176 (424 SE2d 855), is misplaced. In that case, the plaintiff was aware of the full extent of the danger, i.e., the crack in the railroad crosstie. Nothing prevented that plaintiff from seeing the crack for what it was. In the case sub judice, on the other hand, plaintiff was not aware of the full extent of the danger. She had no way of knowing that the depression sloped (and that the debris would slide) because the depression was filled with debris.


text:
    A92A1829.
    RAMIREZ v. KROGER COMPANY.
    (429 SE2d 311)
   Birdsong, Presiding Judge.

Eva Ramirez appeals from the grant of summary judgment to The Kroger Company in her lawsuit arising from a fall in a Kroger store. The record shows Ms. Ramirez was shopping with her daughter; they were about to check out when they started to look for another item. After someone told them the product was on the top shelf on a nearby aisle, Ms. Ramirez went one way looking for the product and her daughter another. While it is not clear who told Ms. Ramirez the location of the product, giving Ms. Ramirez the benefit of the doubt we will assume that it was a Kroger employee.

Before finding the product, however, Ms. Ramirez tripped over a bread tray placed in the aisle by a Kroger employee stocking the shelves. The record shows the bread tray was four or five inches high, two feet by two feet square, and dark grey in color. The floor of the store is off-white.

Apparently relying on our decision in Wal-Mart Stores v. Hester, 201 Ga. App. 478 (411 SE2d 507), the trial court granted summary judgment to Kroger. Ms. Ramirez, however, claims the trial court erred because a genuine issue of material fact exists whether the distraction doctrine applies. Held:

In Wal-Mart Stores v. Hester, supra, we held that a plaintiff’s mere failure to watch where he was going while he shopped would not give rise to application of the distraction doctrine. Ms. Ramirez, however, argues that the distraction doctrine applies in this case because a Kroger employee told her to look on the top shelf of aisle three for the product she wanted.

While our law recognizes circumstances in which Ms. Ramirez might be excused from exercising the degree of care to which the law otherwise holds ordinary and prudent persons, Ms. Ramirez’ attempt to avoid the plain view doctrine is not supported by the record. “The [distraction] doctrine [covers] situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378 (124 SE2d 688). Thus, liability is imposed because of the proprietor’s superior knowledge of the object in the aisle and of the item creating the distraction. Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 429 (263 SE2d 171). Here, Ms. Ramirez claims she was distracted because an employee told her where the product could be found and she was distracted while looking for it.

Nevertheless, the distraction doctrine has its limits. See Froman v. Smith, 197 Ga. App. 338, 339 (398 SE2d 413). “One valid line of distinction existing in the so-called ‘distraction’ cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse [her] lack of care for [her] own safety than one who creates an emergency can excuse himself because of its existence.” Redding v. Sinclair Refining Co., supra at 378-379. In this instance, the record shows that Ms. Ramirez was not looking at the product when she fell and that she did not even fall where she was told the product she was looking for could be found. Instead, the record shows, without conflict, that she fell while on her way to that location, and according to the diagrams prepared by the witnesses, at a point where she could not even see the location on the shelf where the item was placed. Under the circumstances, the record shows that Ms. Ramirez failed to exercise ordinary care for her own safety sufficient to bar recovery for her injuries. Therefore, this appeal is controlled by Wal-Mart Stores v. Hester, supra at 478-479.

Accordingly, the plain view doctrine controls: “[0]ne is under a duty to look where [she] is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries.” Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 474-475 (249 SE2d 276). Merchants have the right to put cartons in aisles while shelves are being stocked, and customers may expect to find such objects in the aisles, but merchants must place articles where they do not threaten danger to those using the aisle and where they are in full sight and observation. Big Apple Super Market of Rome v. Briggs, 102 Ga. App. 11, 14 (115 SE2d 385). This record shows the bread tray placed in the aisle was a rather large item, and the dark grey color of the tray contrasted with the off-white color of the floor. Further, the tray was placed in full view. Therefore, the trial court did not err by granting summary judgment to Kroger.

Judgment affirmed. Pope, C. J., Andrews, Johnson and Blackburn, JJ., concur. Carley, P. J., Beasley and Cooper, JJ., dissent. McMurray, P. J., disqualified.

Beasley, Judge,

dissenting.

I respectfully dissent.

There is evidence that the employee had brought out a dolly with eight to ten bread trays containing products to be stocked. She placed it directly in front of an end cap and took one of the trays from it and put it in front of the center end cap, which separated aisles two and three. Ms. Ramirez was looking for a product which she says one of the employees said was on top in aisle three. As she came around from aisle two to aisle three, she did not see the bread tray on the floor, stepped in it, and fell. It was not an obstruction which the customer could see from a distance, because of where she was coming from.

Decided March 16, 1993.

Freeman & Hawkins, Alan F. Herman, William G. Scoggin, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Lisa M. Smith, for appellee.

“ ‘[T]he merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone.’ (Cit.)” Big Apple Super Market of Rome v. Briggs, 102 Ga. App. 11, 14 (115 SE2d 385) (1960). Whether this obstruction, large and low, was placed in a way which a person rounding the corner would not be expected to see or anticipate before being tripped by it, and whether plaintiff exercised ordinary care in failing to discover the obstruction which she suddenly came upon and to avoid tripping over it, are jury questions in this case. Should Ms. Ramirez have discovered the bread tray in the exercise of ordinary care, before stumbling on it? The question is to be determined “in the light of the attendant circumstances,” Big Apple, supra, and I cannot say that she should have done so, as a matter of law. Issues of negligence, diligence, and exercise of ordinary care for one’s protection, except in plain and indisputable cases, ordinarily are to be decided by the jury. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 156 (256 SE2d 916) (1979).

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


author: Beasley, Judge.

text:
    A92A1862.
    COX et al. v. REWIS et al.
    (429 SE2d 314)
   Beasley, Judge.

Betty Rewis and her husband sued Martin Cox and his mother for injuries sustained by Mrs. Rewis in a motor vehicle collision caused by the negligence of Martin Cox. The jury awarded $30,000 to Mrs. Rewis, which by agreement of the parties was reduced to $25,000 because of $5,000 in PIP insurance benefits received by Mrs. Rewis.

The plaintiffs’ evidence was as follows: Mrs. Rewis testified that in 1988 she began having complaints of pain between her shoulders and running down her right arm into her hand. She did not know the cause of these symptoms, although they began when she was working as a quality control inspector bending down and using her arms and hands to pick up shirts. Her family physician, Dr. McRae, referred her to Dr. Cannon, a neurosurgeon. In January of 1989, Dr. Cannon performed surgery upon Mrs. Rewis. On April 17, 1989, he released her to return to work. Because of a better job opportunity, she left her prior employment and became employed as a bench operator. She assembled small parts into the base of an electrical meter, using a small electrical screwdriver with her right hand approximately 50-60 percent of the time.

Mrs. Rewis testified that from the time she returned to work until the collision, which occurred on September 14, 1989, she did not have any pains in her back, neck, or right hand. At the time of the collision, her car was in a stationary position, and she had her right hand on the steering wheel when her car was rear-ended by the car driven by Mr. Cox. Although Mrs. Rewis was rendered unconscious, she did not hit the windshield or steering column, sustain any cuts or lacerations, or break her wrist. She drove her car away from the accident but later began experiencing soreness in her neck, back, and chest area. She went to the emergency room approximately two hours after the accident, was given medication, and was told to see her regular physician if her pain persisted. She saw Dr. McRae approximately one week later. He again referred her to Dr. Cannon.

Mrs. Rewis, as well as her mother and husband, testified that she engaged in a wide range of daily activities which have become very limited since the collision.

After the trial court denied a motion for directed verdict filed by defendants at the close of plaintiffs’ evidence, they introduced the deposition testimony of Drs. McRae and Cannon.

They testified that Mrs. Rewis previously had been diagnosed as suffering from degenerative disc disease in her cervical spine with moderate spondylosis. In January 1989, Dr. Cannon performed a laminectomy on her after determining that she had a ruptured or herniated disc. Thereafter, she complained of pain and discomfort in her left shoulder, but she did not have any problems concerning pain in her neck or back or difficulty with her right hand. When Dr. Cannon saw Mrs. Rewis after the collision, she was complaining of some numbness in her hands and pain in both shoulders. She brought x-rays which showed slight deterioration in her degenerative disc disease. Dr. Cannon ordered an EMG study, which is the best objective, diagnostic test for determining whether the nerve is being pinched or blocked at the area of the wrist where the carpal tunnel is located. The EMG study showed very mild carpal tunnel syndrome (repetitive motion disorder) on the right. Dr. Cannon next saw Mrs. Rewis on October 2. She stated that she did not have any discomfort as long as she remained totally inactive. Dr. Cannon stated that although her symptoms were fairly slight, a carpal tunnel release might be indicated if the symptoms continued. Dr. Cannon next saw Mrs. Rewis on August 3, 1990. She was having difficulty with her right hand and had similar complaints of numbness. As a result, a carpal tunnel release was performed on August 8.

Dr. Cannon testified that the exact cause of carpal tunnel syndrome is unknown, but that it is ordinarily associated with repetitive motions as required by one’s employment; arthritis, diabetes, and birth control pills have been identified as causes. People who have degenerative disc disease are more prone to carpal tunnel. Dr. Cannon was of the opinion that although Mrs. Rewis’ carpal tunnel problems could not have been caused by an automobile collision of the severity of the one in this case, her condition could have been worsened by it. Dr. McRae gave like testimony.

1. Defendants contend that the trial court erred in denying their motion for directed verdict as to plaintiffs’ theory of recovery based on the family purpose doctrine, in that the evidence failed to establish it.

At the time of the collision, Mr. Cox was living with his father but had been visiting his mother for approximately one week before going to college. She received a telephone call from a family friend who needed a ride to work because his car was in the shop. She allowed her son to use her car to transport the friend to work. He did not have the general use of it, but she allowed him to drive on occasion for specific purposes.

Where the parents have been divorced, with the non-custodial parent furnishing an automobile to the child, the family purpose doctrine is applicable. Esco v. Jackson, 185 Ga. App. 901 (1) (366 SE2d 309) (1988); Alexander v. Kendrick, 134 Ga. App. 249, 251 (4) (213 SE2d 911) (1975).

“As a general rule, in order for the ‘family purpose’ or so-called ‘family car’ doctrine to be applicable, ‘it must appear that the father, or head of the household, furnished and maintained the automobile for the pleasure, comfort and convenience of his family. . . .’ [Cit.]” (Emphasis omitted.) Esco, supra at 902. The parent is liable for the negligence of a child who is using the car for his or her pleasure, based upon a fictitious agency theory and as an exception to another general rule under which a parent is not liable for the tort of a child with which the parent was not connected and did not ratify. Griffin v. Russell, 144 Ga. 275, 277-278 (1) (87 SE 10) (1915); Murch v. Brown, 166 Ga. App. 538 (304 SE2d 750) (1983). A parent may also be held liable for the negligence of a child where the child occupies the position of agent or servant in the performance of a specific act at the behest of the parent. Griffin, supra at 278.

Mrs. Cox relinquished possession of her car to her son with the instruction that he aid a family friend who had telephoned her and needed a ride to work. Under these facts, the jury was authorized to find Mrs. Cox vicariously liable for the negligence of her son, who was using the car as her agent to accomplish a family purpose. See Whitlock v. Michael, 79 Ga. App. 316, 317 (1) (53 SE2d 587) (1949); see generally Quattlebaum v. Wallace, 156 Ga. App. 519, 520 (275 SE2d 104) (1980); compare McCray v. Hunter, 157 Ga. App. 509 (277 SE2d 795) (1981).

2. Defendants contend that the trial court erred in denying their motion for directed verdict as to Mrs. Rewis’ claim for expenses incurred in treating her carpal tunnel problems. The reason given is that plaintiffs failed to present any medical evidence which established a causal relationship between the collision and the carpal tunnel syndrome.

In Eberhart v. Morris Brown College, 181 Ga. App. 516, 517 (1) (352 SE2d 832) (1987), the question was whether the defendant was liable for expenses incurred in treating plaintiff’s physical injury, and there was a significant lapse of time between the date the injury was sustained and the date the medical expenses were incurred. Causation was a medical, question requiring expert evidence. The court distinguished Eberhart in Jordan v. Smoot, 191 Ga. App. 74 (1) (380 SE2d 714) (1989), and Madden v. Solomon, 196 Ga. App. 512 (1) (396 SE2d 245) (1990). In Madden, the court held that where there was no significant lapse of time between the date the injuries in an automobile collision were sustained, and the onset of the physical condition for which the injured party sought compensation, the jurors could determine without expert testimony that the expenses incurred were related to injuries sustained in the collision. Likewise in Jordan, there was no significant lapse of time, and the court, distinguishing Eberhart, held that expert testimony was not required in order for the plaintiff to establish his case sufficiently to withstand the defendant’s motion for directed verdict.

Given the fact that Mrs. Rewis’ problems with her right hand ceased after her surgery in January of 1989 and did not recur until soon after the collision the following September, this case is more like Jordan and Madden than Eberhart. The jury did not need expert evidence to find that although the automobile accident did not cause the carpal tunnel problems, it aggravated them. Defendants were not entitled to a directed verdict at the close of plaintiffs’ evidence;

3. Defendants contend that the trial court erred in instructing the jury on future damages, including loss of future earning capacity, where there was no evidence to justify a charge as to permanent impairment of Mrs. Rewis’ earning capacity.

Unlike Ayers v. Bottoms, 136 Ga. App. 46 (1) (220 SE2d 134) (1975) and McDuffie County v. Rogers, 124 Ga. App. 442, 443 (3) (184 SE2d 46) (1971), cited by defendants, the court did not instruct the jury that it would be authorized to award Mrs. Rewis damages based upon the loss of future earning capacity. Instead, the court charged that “[i]n weighing the future damages, if any exists, which the plaintiff, Mrs. Rewis, may have sustained as a result of the injuries, you are not limited to a consideration of the loss of future earning capacity or future physical pain and suffering. The law also considers as a proper item of damage any disability in whole or in part to perform normal physical functions.” Impaired capacity “to pursue the ordinary avocations of life,” or “to perform normal physical functions,” is compensated as a part of pain and suffering, irrespective of whether there is evidence of a loss or diminishment of future earning capacity. See Jones v. Hutchins, 101 Ga. App. 141, 142 (1) (113 SE2d 475) (1960); Cobb & Eldridge, Ga. Law of Damages (2d ed.), § 38-4, p. 685.

Decided March 16, 1993.

Chambless, Higdon & Carson, Emmitte H. Griggs, Robin N. Bargeron, for appellants.

Newton, Smith, Durden, Kaufold & Rice, Howard C. Kaufold, Jr., Andrew, Threlkeld & Thompson, Charles H. Andrew, Jr., for appellees.

Mrs. Rewis testified to her daily activities before the collision and how she has not been able to perform such activities since the event. The targeted instruction was adjusted to that evidence.

Judgment affirmed. Birdsong, P. J., concurs. Andrews, J., concurs in the judgment only.