author: Carley, Judge. Beasley, Judge,

text:
    A91A0082.
    MARTIN v. REED et al.
    (409 SE2d 874)
   Carley, Judge.

Appellant-plaintiff lost control of his vehicle which then collided with a guardrail. Appellant was injured in the wreck and received medical treatment from appellee-defendants. However, he nevertheless became paralyzed. Alleging that his paralysis was the proximate result of appellees’ negligent misdiagnosis of the extent of his injuries, appellant instituted this medical negligence action. The case was tried before a jury and a verdict in favor of appellees was returned. Appellant appeals from the judgment that was entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the refusal to give a requested charge on the issue of the “spoliation” of evidence.

“Spoliation” is defined as “[t]he destruction, or the significant and meaningful alteration of a document or instrument.” Black’s Law Dictionary (5th ed.). “ ‘Spoliation of evidence raises a presumption against the spoliator.’ [Cit.]” Bennett v. Assoc. Food Stores, 118 Ga. App. 711, 716 (2) (165 SE2d 581) (1968). However, contrary to appellant’s contention, there is no evidence whatsoever of any such “spoliation” of evidence by appellees in the instant case. Since it was not authorized by the evidence, the charge on “spoliation” of evidence was correctly refused.

2. The trial court refused to allow into evidence testimony as to whether hospital policy would mandate the initiation of an internal investigation into the placement of a “mark” on one of appellant’s x-rays.

The existence of such a hospital policy obviously has no relevancy whatsoever to any issue in the instant case. The existence of such an internal investigative policy certainly does not demonstrate that the “mark” constituted “spoliation” of evidence. The excluded testimony was utterly irrelevant and, therefore, it was not error for the trial court to refuse to admit it into evidence.

3. Appellant enumerates as error the admission into evidence of the deposition testimony of a Dr. Murphy.

The record demonstrates that such objections as were raised by appellant related solely to the issue of Dr. Murphy’s credibility rather than to the admissibility of his testimony. “Whether there was insufficient knowledge upon which the expert could render his opinion goes not to the admissibility of that opinion, but to the credibility of the witness. [Cits.]” APAC-Ga., Inc. v. Padgett, 193 Ga. App. 706, 710 (2) (388 SE2d 900) (1989). Accordingly, the trial court correctly allowed the testimony over appellant’s objections.

4. Appellant enumerates as error the admission into evidence of the opinion of a Dr. Howell that appellees had complied with the applicable standard of care. Appellant’s objection went to the competency of Dr. Howell to give such an expert opinion.

A witness’ expression of doubts about his own competency as an expert will not necessarily serve to disqualify him from giving an expert opinion. In the instant case, however, Dr. Howell did not merely express doubts about his own competency to give an expert opinion as to appellees’ malpractice. Dr. Howell acknowledged his own incompetency to analyze x-rays. Since appellees’ alleged malpractice related to the analysis of appellant’s x-rays, Dr. Howell’s acknowledgment was, in effect, an admission that he was not competent to give his own expert opinion as to appellees’ malpractice. An expert may not “base his opinion upon the opinion of another, especially an opinion which is not even testified to at trial. [Cit.]” Hyles v. Cockrill, 169 Ga. App. 132, 134 (4) (312 SE2d 124) (1983). Since Dr. Howell had acknowledged that he had no personal competency in the area of x-ray analysis, any opinion that he may have drawn as to appellees’ malpractice would necessarily have no probative value as an expert opinion and would be inadmissible as such. Therefore, the trial court erred in failing to sustain appellant’s objection to the admission of Dr. Howell’s purported expert opinion testimony.

5. The refusal to give the following request to charge is enumerated as error: “[Y]ou are not to consider the cause of [appellant’s] automobile wreck when deciding whether [appellees are] liable in this case. You should not consider the cause of the wreck because there is no legal connection between [appellant’s] actions while driving on the highway and [appellees’] later actions at the . . . [h]ospital.”

This refused request to charge does not purport to address the connection between the automobile wreck and the damages that appellant sought to recover. It purports to address the connection between the cause of the original automobile wreck and appellees’ alleged subsequent malpractice. In effect, the requested charge correctly states that “[t]he cause of the injury for which appellant sought treatment has absolutely no relevancy to whether [he] somehow contributed to any of the subsequent injuries sustained as the result of appellees’ allegedly negligent treatment [and] diagnosis. . . . [Cit.]” Overstreet v. Nickelsen, 170 Ga. App. 539, 540 (1) (317 SE2d 583) (1984).

The evidence did not demand a finding of appellees’ subsequent malpractice, and the jury would have been authorized to find that the original automobile wreck was the sole proximate cause of appellant’s paralysis. However, the evidence likewise did not demand a finding of appellees’ conformity to the applicable standard of care, and the jury would have been authorized to find that their subsequent malpractice was the sole proximate cause of appellant’s paralysis. What the jury would not have been authorized to find is that, although appellees’ subsequent treatment and diagnosis did constitute malpractice, a recovery therefor was barred because the original automobile wreck had been caused by appellant. Those patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded. Since the refused request to charge states a correct and applicable principle of law, it was error for the trial court to have failed to give it.

6. Neither the evidentiary error discussed in Division 4 nor the error in the charge discussed in Division 5 was harmless. Accordingly, the judgment must be reversed and a new trial held.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Pope and Cooper, JJ., concur. Sognier, C. J., Banke, P. J., Beasley and Andrews, JJ., dissent.

Beasley, Judge,

dissenting.

Plaintiff Edward Martin sought recovery for injuries he sustained from alleged medical malpractice by defendants Michael Reed, M.D., and Cartersville Radiology Group, P.C.

Martin alleged that Dr. Reed misread Martin’s x-rays and missed the fact that Martin had seriously injured his neck when he had a seizure while driving his car and crashed, with the result that Martin’s neck was not immobilized and in less than three days he was partially paralyzed.

I respectfully dissent because of the rulings in Divisions 4 and 5.

1. As to Division 4, objection was made to the testimony of Dr. Howell, an internal medicine specialist, whose opinion was that Dr. Reed exercised that degree of care exercised generally by physicians under like conditions and circumstances. The ground of objection was that the doctor admitted earlier that he was not competent to read cervical spine x-rays. The argument is that, because the central issue involved whether Dr. Reed negligently read the x-rays, Dr. Howell was disqualified from testifying whether Dr. Reed exercised the proper degree of care.

Dr. Howell was making an overall assessment which he stated was predicated on deposition testimony of Dr. Murphy and Dr. Harbin, whose deposition was not introduced at trial. He was evaluating Dr. Reed from the standpoint that both the other doctors had difficulty in diagnosing Martin’s condition.

Where an expert’s testimony is based on hearsay, lack of personal knowledge does not mandate exclusion of his opinion but presents a jury question as to the weight which should be assigned to that opinion. King v. Browning, 246 Ga. 46, 47 (268 SE2d 653) (1980). Also, a witness’ expression of doubt about his own competency does not disqualify him from testifying as an expert witness. Askew v. State, 185 Ga. App. 282 (1) (363 SE2d 844) (1987); Reeves v. Morgan, 121 Ga. App. 481, 483 (2) (174 SE2d 460) (1970) (reversed on other grounds 226 Ga. 697 (177 SE2d 68) (1970)).

Decided July 16, 1991

Reconsideration denied July 31, 1991

D. Lake Rumsey, Jr., Tom W. Brown, for appellant.

Brinson, Askew & Berry, Robert M. Brinson, Joseph B. Atkins, for appellees.

2. As to Division 5, the requested instruction amounted to a directed verdict insofar as whether there was any connection between the automobile wreck and the damages for which plaintiff sought recovery. Although Martin introduced testimony that immobilization of his neck would have prevented his paralysis, he failed to demonstrate that the evidence demanded a finding that Dr. Reed’s negligent reading of the x-rays was the sole cause of his final, resulting injuries. “ ‘Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from such want of care or skill.’ ” Hawkins v. Greenberg, 166 Ga. App. 574, 575 (304 SE2d 922) (1983). See Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115 (243 SE2d 269) (1978). Unless the evidence requires a particular finding, “it is the province of the jury to say whether the result was caused by the negligence.” Pilgrim v. Landham, 63 Ga. App. 451 (3) (11 SE2d 420) (1940). That being true, the written request to charge was not applicable to the evidence, and the refusal to charge it was correct. Seaboard C. L. R. Co. v. Thomas, 229 Ga. 301, 302 (190 SE2d 898) (1972).

The judgment of the trial court, which was in accord with the verdict of the jury, should be affirmed.

I am authorized to state that Chief Judge Sognier, Presiding Judge Banke, and Judge Andrews join in this dissent.


source: Caselaw Access Project

author: Sognier, Chief Judge. Andrews, Judge,

license: Public Domain

text:
    A91A0166.
    MAIL CONCEPTS, INC. v. FOOTE & DAVIES, INC.
    (409 SE2d 567)
   Sognier, Chief Judge.

Mail Concepts, Inc., successor in interest to Peach State Mailing, Inc., brought suit against Foote & Davies, Inc. on an account assigned to Mail Concepts by Peach State. The trial court held enforceable the non-assignment clause in the contract between Foote & Davies and Peach State and granted summary judgment to Foote & Davies. Mail Concepts appeals.

The contract between appellee and Peach State, which was memorialized on a purchase order form prepared by appellee, provided that appellee would deliver to Peach State 756,000 copies of a health club magazine to be distributed on behalf of a client of appellee. Peach State would rubber plate imprint the recipient health club’s name on the cover of each magazine, box the magazines in cartons, and then key the recipients’ names for shipping, print the shipping labels, prepare the UPS manifest, and ship the cartons. The purchase order itemized separately the cost of each step, including a price of $14,840 for preparation of imprinting plates for each of the 742 health club recipients, and stated a maximum total price of $29,000. The contract also provided that “[n] either this order no[r] any interest under it may be assigned by [Peach State] without the prior written consent of [appellee].” Appellee refused to pay Peach State’s invoice because its client considered the quality of the imprinting to be inadequate. Peach State subsequently was liquidated and the account receivable for appellee’s account was assigned to appellant without the prior consent of appellee.

1. On appeal, appellant contends the trial court erred by enforcing the non-assignment clause in the purchase order. Arguing that the contract either was for the sale of goods or was severable into separate sales and services transactions, appellant urges this court to apply OCGA § 11-2-210 (2), the provision of the Uniform Commercial Code which authorizes assignment of choses in action even if the underlying contract forbids assignment.

Article 2 of the UCC applies only to “transactions in goods,” OCGA § 11-2-102, with “goods” defined as things “which are movable at the time of identification to the contract for sale.” OCGA § 11-2-105 (1). A “sale” consists in the passing of title from the seller to the buyer for a price, OCGA §§ 11-2-106 (1), 11-2-401, and a “seller” is a “a person who sells or contracts to sell goods.” OCGA § 11-2-103 (1) (d). Our courts have extended the reach of Article 2 to transactions “analogous” to sales. Redfern Meats v. Hertz Corp., 134 Ga. App. 381, 387-393 (215 SE2d 10) (1975). In determining whether a contract is for the sale of goods or is analogous to a sale of goods within the meaning of the Article 2 definitions, we must look to the primary or overall purpose of the transaction. Id. at 391; see Gee v. Chattahoochee Tractor Sales, 172 Ga. App. 351, 353 (2) (323 SE2d 176) (1984); accord North American Leisure Corp. v. A & B Duplicators, Ltd., 468 F2d 695, 697 (2d Cir. 1972) (look to essence of agreement and see whether goods or services predominate). If the primary purpose of the agreement is the rendering of services, even if goods are supplied as part of that performance we will view the contract as one for services with an incidental furnishing of goods, and the UCC does not apply. Gee, supra; Mingledorff’s, Inc. v. Hicks, 133 Ga. App. 27-28 (1) (209 SE2d 661) (1974); Lovett v. Emory Univ., 116 Ga. App. 277, 278-279 (1) (156 SE2d 923) (1967).

We find the contract at issue was one for services and labor because the primary purpose of the transaction was the imprinting, packaging, labeling, and shipping of the magazines. Contrary to appellant’s argument, we do not find the production of imprinting plates made the contract into one for the sale of goods because the plates were prepared only for the purpose of carrying out the imprinting. There is no evidence appellee ever took title to the plates in accordance with OCGA § 11-2-401 or that the parties intended it would do so. Indeed, appellant acknowledges that the parties contemplated Peach State would perform future imprinting, labeling, and shipping services for subsequent issues of the magazine using the same imprinting plates. This transaction is analogous to the one addressed in Wm. H. Wise & Co. v. Rand McNally & Co., 195 FSupp. 621, 625-626 (SDNY 1961), where the court held that a contract for printing and binding books was one of services and labor even though the printer supplied printing and binding material.

Moreover, the fact that the purchase order priced the preparation of the plates as a separate line item does not alter the character of the overall transaction as one for the provision of services. Lovett, supra at 278 (1). Nor do we agree with appellant that the preparation of the plates was a severable portion of the total contract performance, as the essence of the contract was completion of the entire service of imprinting, packaging, labeling, and shipping because that was the service appellee was obligated to provide to its client. See Williams v. Claussen-Lawrence Constr. Co., 120 Ga. App. 190, 191 (169 SE2d 692) (1969). Thus, as in Gee, supra, and Lovett, supra, the provision of services predominated, and supplying of the goods, the plates, was incidental to the overall performance of the contract. See North American Leisure, supra. Consequently, the transaction does not fall within the coverage of Article 2 of the UCC, and the assignment clause of OCGA § 11-2-210 (2) is not applicable. Mingledorff’s, supra at 27-28 (1).

2. Alternatively, appellant maintains that OCGA § 11-9-318 (4), which bars contract terms that prohibit assignment of accounts or require the account debtor’s consent to assignment, applies to void the non-assignment clause at issue. We do not agree, for OCGA § 11-9-104 (e) specifically excludes from Article 9 coverage “a sale of accounts or chattel paper as part of a sale of the business out of which they arose, or an assignment of accounts or chattel paper which is for the purpose of collection only.”

3. Since we have decided the UCC does not apply, the remaining question raised by appellant is whether general legal principles concerning assignment of contract rights and obligations permit the assignment at issue. OCGA § 44-12-22 provides in pertinent part that “all choses in action arising upon a contract’ may be assigned so as to vest the title in the assignee.” Georgia courts have recognized that certain types of contracts, such as agreements for personal services and those requiring peculiar skills or qualifications, are inherently not assignable. E.g., Decatur North Assoc. Ltd. v. Builders Glass, 180 Ga. App. 862, 865 (350 SE2d 795) (1986). However, as was first recognized in Cowart v. Singletary, 140 Ga. 435, 440-452 (79 SE 196) (1913), if a contract does not fall within one of these exceptions, once a party to the contract performs its obligations thereunder so that the contract is no longer executory, its right to enforce the other party’s liability under the contract may be assigned without the other party’s consent even if the contract contains a non-assignment clause. Accord Decatur North, supra. The courts have reasoned that non-assignment clauses have no force and effect in such circumstances because once the party whom the non-assignment clause is intended to protect has received full performance, it cannot insist on adherence to the clause because the purpose of the clause has been fulfilled. Cowart, supra at 451; see Decatur North, supra.

In the case at bar, there is no question of personal services or any other circumstance that would make the contract inherently non-assignable. Peach State performed the services for which it was obligated under the contract at issue, as the magazines were imprinted, labeled, and shipped as required (although appellee contends this performance was deficient). Having no remaining obligations, Peach State “had the contractual right to enforce appellee’s liability [for payment], which right was not coupled with any further liability on [Peach State’s] part to appellee. . . . Since it was only appellee who owed any further potential duty under the contract^] and since no personal confidences were involved in connection with [Peach State’s] countervailing contractual right to enforce that duty, the instant case would come within the general rule of assignability of contract rights. It follows that there would be no legal impediment to the . . . assignment by [Peach State to appellant] of its existing rights under the contract without the prior consent of appellee.” Decatur North, supra at 865. We find that Mingledorff’s, supra, is distinguishable because there the contract was still executory and apparently involved personal services. See Decatur North, supra. We hold that Peach State’s right to enforce appellee’s obligations under the contract was assignable to appellant despite the existence of the non-assignment clause, and accordingly we reverse. Appellant is now entitled to proceed with its action against appellee subject to and charged with all the equities that could have been asserted against Peach State by appellee at the time of the assignment. See Sheffield v. Preacher, 175 Ga. 719, 722 (165 SE 742) (1932).

Judgment reversed.

McMurray, P. J., Banke, P. J., Birdsong, P. J., Carley, Pope, Beasley and, Cooper, JJ., concur. Andrews, J., concurs in part and dissents in part.

Andrews, Judge,

concurring in part and dissenting in part.

While I fully concur with Divisions 1 and 2,1 respectfully dissent as to Division 3, as I do not believe Cowart v. Singletary, 140 Ga. 435 (79 SE 196) (1913) and Decatur North Assoc. v. Builders Glass, 180 Ga. App. 862 (350 SE2d 795) (1986) support the conclusions drawn from them, but do believe that the non-assignment clause here precluded assignment.

Cowart originated as an equitable action seeking, among other equitable relief, to require Grimsley, the holder of legal title to real estate by virtue of a warranty deed from Holmes, to execute a deed to Singletary, the holder of equitable title by virtue of a warranty deed from Cowart who held by a bond of title from Holmes, the bond issuing before the warranty deed to Grimsley. The bond for title contained the non-assignment clause reading “[a]nd it is further stipulated that this bond is not transferrable to any one.” The case was referred to an auditor who found in favor of Singletary, affirmed by the trial court and reviewed and affirmed by the Supreme Court. As stated by that court, the question posed was “[i]f the insertion of such a stipulation [non-assignment clause] in the bond for title rendered the conveyance by [Cowart] to Singletary absolutely void, so that he acquired no right thereunder and no equity arose in his favor by reason of the payment of a large part of the purchase-money to Mrs. Holmes, and so that Mrs. Holmes could make a conveyance to Grimsley, receiving from him the balance of the purchase-money, less what Singletary had paid, and so that Grimsley could convéy a life-interest in half of the land to Caroline Cowart, and Singletary could thus be entirely left out and would have no equitable right whatever, then the finding of the auditor and the decree of the court were wrong.” Cowart, at 440-441.

It was determined that Grimsley took his deed with actual notice of the bond for title, and that Grimsley’s and Cowart’s arguments rested upon “one or all of three contentions:” (1) the bond was analogized to a conveyance in fee simple in which there could be a limited and reasonable restriction upon alienation; (2) the bond was analogized to a chose in action which was not assignable at common law, but is now and was then assignable by statute; and (3) the bond was considered a contract and Holmes had the right to provide with whom she desired to deal and the contract should not be assignable. Id. at 441-442. The opinion then states that “[bjefore taking up each of these contentions separately, it may be well to note that, strictly speaking, there was no transfer of the bond, but that [Cowart] made a warranty deed to Singletary.” Id. at 442. (Emphasis supplied.) Thus, whatever interest Cowart eventually took would transfer to the grantee, Singletary, unless Cowart was entitled to rely upon her agreement with Holmes, who had been fully compensated, not to transfer Cowart’s rights under the bond to defeat a warranty deed which Cowart executed.

The court rejected the first two proffered analogies, then discussed the third, resulting in our present disagreement. The court recognized two categories of contracts, the first involving personal services, skill, science or qualifications which are not assignable even in the absence of a non-assignment clause.

The provision of Cowart relied upon on page 781 of the majority is apparently the discussion of the remaining class of contracts, executory contracts. The majority states the rule in Cowart to be that in otherwise assignable contracts, where one party has performed thereunder “so that the contract is no longer executory, its right to enforce the other party’s liability under the contract may be assigned without the other party’s consent even if the contract contains a non-assignment clause.” (Emphasis supplied.) All of the cases then cited deal only with the transfer of title to land in cases where the vendor has received full payment for the property, holding only legal title thereto, while the original purchaser holds equitable title which he may freely convey. The Georgia cases cited contain no non-assignment clauses and the foreign cases, which we choose not to follow, likewise deal only with real estate sales where the vendor of the real estate was relying on the non-assignment clause in refusing to transfer legal title, having received full payment. That a court of equity may choose to rely on such a situation to grant equitable relief to the purchaser and his assignee does not equate to the broad principle announced by the majority which would apply to all types of contracts.

Finally, as noted by the Cowart court, the maker of the stipulation, Holmes, while named as a party to the suit, had died and no administrator was appointed to represent her in the case, neither did she in her lifetime attempt to enforce the stipulation. That Cowart is restricted to real property transfers is supported by Perkins v. Rhodes, 192 Ga. 331, 333 (1) (15 SE2d 426) (1941) which cites it as an example of the principle that the maker of a deed is estopped from denying his right to convey after-acquired title to real property. See also Rucker v. Corbin, 188 Ga. App. 182, 183 (372 SE2d 512) (1988).

Neither does Decatur North support the position taken, since the contract there also contained no non-assignment clause. I believe this case is indistinguishable from Mingledorff’s, Inc. v. Hicks, 133 Ga. App. 27 (209 SE2d 661) (1974) and the non-assignment clause is valid.

Decided July 16, 1991

Reconsideration denied July 31, 1991

Ralph G. McCallum, Jr., for appellant.

Alembik, Fine & Callner, G. Michael Banick, for appellee.


author: McMurray, Presiding Judge. Beasley, Judge, Sognier, Chief Judge,

text:
    A91A0167.
    PLATT v. THE STATE.
    (409 SE2d 878)
   McMurray, Presiding Judge.

Defendant was convicted and sentenced for trafficking in cocaine on September 21, 1989. Thereafter, on February 26, 1990, the trial court entered an order granting defendant’s motion for a new trial.

In granting the defendant’s new trial motion, the trial court observed that at trial the prosecution only “adduced testimony from Susan Strickland, of the State Crime Lab, that the substance which she tested was ‘positive for cocaine,’ and weighed more than 28 grams.” Thus, the trial court concluded that the State failed to prove defendant was in possession of cocaine or a mixture containing more than ten percent cocaine. In the trial court’s words: “To say a substance is ‘positive for cocaine’ is not to say that the substance is ‘cocaine.’ If that were the case, then a truckload of baby powder laced with two teaspoons of cocaine would test positive for cocaine and would authorize prosecution and conviction . . . for a trafficking level offense.”

On March 1, 1990, the State moved for reconsideration of the grant of the motion for a new trial. Responding to the State’s motion for reconsideration, the trial court entered an order on May 15, 1990, in which it “[reaffirmed] its order of February 26, 1990.” Continuing, in a separate paragraph, the trial court found the evidence “legally insufficient to sustain a conviction of Trafficking Cocaine, but . . . ample ... to sustain a conviction of possession of cocaine.” Accordingly, the trial court reassigned the case to amend the judgment of conviction “in a manner not inconsistent with this finding.” Subsequently, on August 16, 1990, defendant was sentenced for possession of cocaine and he appealed. Held:

Defendant contends the trial court erred when it modified the February 26, 1990, order granting his motion for a new trial because the modification was made after the expiration of the term in which the order was entered. This contention is without merit.

We recognize that, generally speaking, the power of the trial court to revise or vacate an order granting a new trial expires at the end of the term in which the order is entered. The general rule is inapplicable, however, where proceedings to revive the conviction were begun during the same term. Howard v. State, 194 Ga. App. 331 (1) (390 SE2d 415); Pledger v. State, 193 Ga. App. 588 (2) (a) (388 SE2d 425).

Court terms in Dougherty County begin on the second Monday in January, March, May, July, September and November. OCGA § 15-6-3 (15). It follows that the modification order was not umtimely because the State’s motion for reconsideration, which sought to revive the conviction, was filed before the end of the term in which the court entered the order granting a new trial.

2. Defendant takes the position that the order of May 15, 1990, simply reaffirmed the order granting the motion for a new trial and raised the bar of double jeopardy. Thus, defendant insists he could not be sentenced for cocaine possession. We disagree.

The trial court did not enter two separate orders — one granting the motion for a new trial and another finding the evidence sufficient to sustain a conviction for cocaine possession — when it ruled upon the State’s motion for reconsideration. Rather, the trial court entered one order on May 15, 1990. The overall effect of that order was to amend the order granting the motion for a new trial.

In amending the order granting the motion for a new trial, the trial court reaffirmed the order granting the motion for a new trial (since it was correct, in part) and this gives rise to some confusion. We think it is clear, however, that the trial court did more than simply reaffirm the order granting the motion for a new trial. It went on to find the evidence sufficient to sustain a conviction for cocaine possession. In our view, the trial court properly amended the order granting the motion for a new trial in such a fashion. See Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532).

Judgment affirmed.

Birdsong, P. J., Carley, Pope and Andrews, JJ., concur. Beasley, J., concurs specially. Sognier, C. J., Banke, P. J., and Cooper, J., dissent.

Beasley, Judge,

concurring specially.

It is fairly obvious when both orders are read (the order of February 26 and the order of May 15) that what the court meant by its reaffirmance of the February 26 order was that it still considered the scientific evidence insufficient to support the trafficking conviction. The district attorney had argued that the testimony could be construed to mean that the requisite weight of cocaine had been found by the crime laboratory. The court concluded that even if the laboratory’s measurements had in fact shown the weight and purity were present so as to constitute “trafficking,” the State did not elicit the evidence to prove it. The court found, however, that “there was ample evidence to sustain a conviction of possession of cocaine.”

The court did not reaffirm the grant of a new trial. Instead, in consequence of its evidentiary conclusion as to the lesser offense, it immediately turned to the question of remedy and ordered that the trial judge “amend the judgment of conviction in a manner not inconsistent with this finding.” It cited Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532) (1989). See also Choate v. State, 158 Ga. App. 8 (279 SE2d 459) (1981), where this Court did precisely what the court below in this case did, i.e., direct that a conviction and sentence be entered for the lesser included offense which the evidence supported. The trial judge followed the direction and sentenced defendant for possession of cocaine.

It would defy logic to conclude that the court simultaneously ordered two entirely inconsistent remedies, i.e., a new trial and a final adjudication on possession in lieu of trafficking.

Sognier, Chief Judge,

dissenting.

I respectfully dissent. I find that the resentencing was in error because no defendant may be sentenced after a new trial is granted but has not yet occurred, and also because the May 15 order, which expressly reaffirmed the February 26 finding of insufficient evidence, raised the bar of double jeopardy.

The resentencing was erroneous even absent the bar of double jeopardy because the grant of a new trial “ ‘[wipes] the slate clean as if no previous conviction and sentence had existed,’ ” Pledger v. State, 193 Ga. App. 588 (2a) (388 SE2d 425) (1989), and as a general rule leaves the case pending below for retrial. Id. at 589. Consequently, the effect of the February 26 order was to eliminate the record of evidence made at trial and return appellant to the status he held before trial, i.e., under indictment and facing trial. Further, although the trial court was authorized to reconsider that ruling within the same term, the court did not do so. Instead, in its May 15 order, the court expressly reaffirmed the prior finding that appellant was entitled to a new trial because the evidence adduced at trial was “legally insufficient” to establish the charged crime. Thus, regardless whether the trial court’s rulings on appellant’s new trial motion raised the bar of double jeopardy, he could not have been sentenced on any charge until after a retrial and subsequent conviction.

However, no retrial could be held. Once the trial court found the State’s evidence to be legally insufficient, the double jeopardy clause of the federal constitution barred a second trial on the trafficking charge. Burks v. United States, 437 U. S. 1 (98 SC 2141, 57 LE2d 1) (1978); Ricketts v. Williams, 242 Ga. 303 (248 SE2d 673) (1978). A retrial similarly was barred under state law because of the trial court’s finding that the evidence was insufficient to authorize the verdict. OCGA § 16-1-8 (a) (1), (d) (2); Marchman v. State, 234 Ga. 40 (215 SE2d 467) (1975) (construing former Ga. Code Ann. § 26-507). When a new trial is granted based on a finding of insufficient evidence, such a ruling has the same effect as a directed verdict of acquittal: no retrial is permitted. Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743) (1975); accord Burks, supra at 17-18 (held, after court rules on motion for new trial that evidence was. insufficient, the only proper remedy is the direction of a verdict of acquittal). Consequently, once appellant’s motion for new trial was granted, and the May 15 order, which provided for the resentencing at issue on appeal, expressly reaffirmed the finding of insufficiency and the grant of a new trial, appellant could not be retried, see Marchman, supra, and the case against him was at an end.

Moreover, jeopardy also attached to the charge of cocaine possession, the offense for which appellant was resentenced. Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532) (1989), cited by the majority, is not applicable because in that case the sentencing for the lesser included offense was ordered after the appellate court found a fatal variance between the allegata and the probata in the proof of the charged crime, a ruling which did not raise the bar of double jeopardy. Here, however, the trial court’s orders did not merely affirm the verdict and then go on to amend the sentence to reflect a fatal variance, but instead granted a new trial based on evidentiary insufficiency and expressly reaffirmed this ruling before entering a judgment and sentence on a lesser included charge. This ruling did raise the bar of double jeopardy. Consequently, since a subsequent charge of cocaine possession would have arisen from the same conduct and been based on the same evidence at issue in the trafficking trial, see Dalton v. State, 249 Ga. 720-721 (1) (292 SE2d 834) (1982); compare Rogers v. State, 182 Ga. App. 599 (1) (356 SE2d 546) (1987), such a prosecution would have been barred under OCGA §§ 16-1-7 (b); 16-1-8 (b) (1), (d) (2). Marchman, supra at 41. Given that the double jeopardy statutes would have barred a retrial of appellant for cocaine possession, it follows that he could not be sentenced for that offense after the trial court entered the ruling to which double jeopardy attached.

Since there was no case pending against appellant, no record of evidence adduced against him, and no possibility of retrial on either charge, there was no basis upon which a sentence could be entered. Accordingly, I would reverse the judgment entered below and remand with direction to enter a directed verdict of acquittal. Burks v. United States, supra at 18; accord State v. Bryant, 182 Ga. App. 698 (356 SE2d 656) (1987); compare Hunter v. State, 257 Ga. 571, 574 (4) (361 SE2d 787) (1987).

Decided July 16, 1991

Reconsideration denied July 31, 1991

Underwood & Mathis, Billy C. Mathis, Jr., for appellant..

Britt R. Priddy, District Attorney, for appellee.

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

       In its brief before this court, the State urges us to vacate the order granting a new trial. The State cannot seek such a remedy on appeal because the double jeopardy clause precludes an appeal by the State from a lower court ruling based on insufficiency of the evidence even if the ruling was erroneous. State v. Williams, 246 Ga. 788-789 (1) (272 SE2d 725) (1980); State v. Bryant, 182 Ga. App. 698 (356 SE2d 656) (1987). “Since the trial court ruled that the [S]tate failed to prove its case as charged and tried, [the State] cannot now [challenge that ruling] and subject [appellant] to a new trial on the merits.” Bryant, supra at 699.


author: Sognier, Chief Judge. Beasley, Judge, McMurray, Presiding Judge,

text:
    A91A0217.
    MORALES et al. v. WEBB.
    (409 SE2d 572)
   Sognier, Chief Judge.

Mary Webb brought suit against Brian Arnold, M.D., an anesthesiologist, and his professional corporation; Cecilia Morales, a certified registered nurse anesthetist employed by the professional corporation; and M. Michael Pulliam, M.D., an ophthalmologist, and his professional corporation, alleging negligence in the performance of cataract surgery. The jury rendered a verdict in favor of Dr. Pulliam and his professional corporation, but awarded a verdict of $300,000 in compensatory damages and $700,000 in punitive damages against Dr. Arnold, Morales, and Dr. Arnold’s professional corporation. The latter three defendants appeal from the denial of their motion for judgment n.o.v. on the punitive damages award.

It is undisputed that after cataract surgery was performed on appellee, she developed a swelling of the nerve fiber in the back of her eye, which led to a loss of vision. The cause of this occurrence, however, was hotly contested at trial, with the parties in complete disagreement on the critical question whether the anesthetic was depleted during the surgery and whether appellee became anesthetically “light” during the procedure. Evidence was adduced that appellee’s surgery, during which a cataract was to be removed from her right eye and a new lens inserted, was the first procedure performed in the operating room of Newton General Hospital on June 11, 1987. Although such procedures ordinarily are performed under local anesthesia, appellee, a 66 year old woman, chose to have general anesthesia. Dr. Arnold objected to this decision because appellee’s history of heart disease, high blood pressure and insulin dependent diabetes increased the risk of complications, but Dr. Pulliam, who as the surgeon had the final say, overruled him.

Morales, who was responsible for administering the anesthetic agents during the surgery, also had the duty of setting up the anesthesia machine and equipment before the procedure began. Morales testified that she followed her usual pre-surgery procedures that morning, and specifically recalled checking the anesthesia machine canister to ensure that it contained a sufficient amount of Forane, the principal anesthetic agent. The chart she prepared to document her activities during the surgery stated that the “[anesthesia] machine [was] checked and working” prior to the start of the procedure. Dr. Arnold testified that for appellee’s surgery he followed his usual practice of anesthetizing the patient, ensuring she was stable, and remaining in the operating room until just before the incision.

The hospital records revealed that anesthesia was begun at 7:55 a.m. Dr. Pulliam testified that at about 9:15 a.m., approximately 15 minutes after he began the surgery, as he was viewing appellee’s eye through a microscope and preparing to insert the lens implant, he saw her eye move and felt her head rise slightly. Dr. Pulliam testified that he informed Morales that appellee was exhibiting signs of becoming anesthetically light, and that in response Morales said the problem had arisen because the Forane had run out. He testified that he then watched Morales refill a canister with an “aqua-greenish” liquid. Dr. Pulliam testified that he had to wait three to five minutes for appellee to become stabilized before he could resume the procedure, whereupon he ascertained that appellee had experienced a loss of vitreous and that the vitreous had extruded through the incision. As a result, he could not insert the lens but instead was compelled to perform a vitrectomy to correct the extrusion. Dr. Pulliam testified that after the surgery was completed, he immediately informed both Dr. Arnold and the hospital administrator of the episode.

Morales and Dr. Arnold acknowledged that allowing the Forane to run out or the patient to become light constituted breaches of the applicable standard of care, but they denied such events occurred. Morales testified that she fully carried out her duty to check and refill the Forane canister before the procedure, that appellee never moved or became light, and that the Forane did not run out during the procedure. Dr. Arnold testified that after he determined appellee was properly anesthetized, he then went to the next operating room to prepare another patient, but checked on appellee regularly and returned to the operating room at Morales’s request to administer additional medication as needed. Both he and Morales testified that he spent more time in the operating room with appellee than was his usual practice, and he stated he did so because of his concerns about appellee’s poor health. Dr. Arnold testified that despite his frequent presence in the room, he never saw appellee move or become light, and that no one ever informed him of such an incident. A bottle of a clear liquid Dr. Arnold identified as Forane was admitted into evidence.

The hospital administrator testified that Dr. Pulliam did not mention the problem to him until months afterward. Of the other nurses in the operating room at the time of the procedure, one testified she was aware that appellee moved and became light, while two others denied seeing appellee become light. The hospital charts prepared to document the procedure did not indicate that the Forane supply ran out, but did reveal that appellee experienced blood pressure fluctuations during the surgery, including a rise in blood pressure around 9:15 a.m., and evidence was adduced that an increase in blood pressure could result either if the patient became light or from other causes. The charts also disclosed that certain medications had been administered by Morales and Dr. Arnold during the procedure, but the evidence concerning the purpose of those actions was disputed, with appellants contending the medications were given to maintain appellee’s blood pressure and facilitate her use of the ventilator, and other experts opining that the drugs were used to stabilize appellee after she became light.

Conflicting expert testimony also was presented on the issue of the cause of appellee’s vitreous extrusion and subsequent loss of vision. Evidence was adduced that vitreous extrusion, a known risk of cataract surgery, can occur as a result of various factors, one of which is a rise in intraocular pressure after incision. There was testimony that an increase in intraocular pressure can result from, inter alia, an increase in blood pressure, which could happen if the patient became light.

“Punitive damages ‘are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.’ [Cit.] In Georgia, when the tortious conduct amounts to ‘wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences(,)’ punitive damages are allowed pursuant to OCGA § 51-12-5 to deter the wrongdoer from repeating his wrongful acts. [Cits.] Punitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award. [Cit.]” Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3b) (365 SE2d 827) (1988). The issue of punitive damages is ordinarily for the jury, but appellate courts will intervene if there is no evidence to support such an award. Assoc. Health Systems v. Jones, 185 Ga. App. 798, 802 (2) (366 SE2d 147) (1988).

In the case at bar, there was evidence from which the jury could find that Dr. Arnold and Morales, his employee, negligently failed to maintain an adequate level of Forane and negligently failed to keep appellee properly anesthetized, and that this negligence was the proximate cause of her subsequent vision loss. Proof of negligence, however, is not sufficient to sustain an award of punitive damages. Colonial Pipeline, supra. There was no evidence of “an intentional disregard of the rights” of appellee, nor was there any evidence that appellants “knowingly or wilfully disregarded such rights” so as to authorize a finding of conscious indifference to consequences. Assoc. Health, supra. Unlike the circumstance in Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 175 (2) (355 SE2d 104) (1987), cited by appellee and the dissent, in which the defendant’s employees knew of the plaintiff’s physical condition and medications history but failed to convey this information to the physician on call, here there was no evidence that appellants had actual knowledge of the shortage of Forane in advance of the operation, and thus no evidence of a conscious indifference to consequences. “While there may have been evidence from which the jury could find negligence, there was no evidence of an entire want of care on the part of [appellants] which would raise the presumption of a conscious indifference to consequences. [Cits.] Therefore, the trial court erred in refusing to direct a verdict in favor of [appellants] on the issue of punitive damages.” Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 862 (1) (389 SE2d 355) (1989). See Assoc. Health, supra at 802-803. Accordingly, we reverse the trial court’s denial of appellants’ motion for judgment n.o.v. on the punitive damages claim.

Judgment reversed.

Birdsong, P. J., Carley and Andrews, JJ., concur. Beasley, J., concurs specially. McMurray, P. J., Banke, P. J., Pope and Cooper, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur. There is a legal difference between even gross negligence, which will not support punitive damages, and conscious indifference to the consequences of one’s behavior, which aggravating circumstance will support punitive damages. Considering all the evidence in favor of the verdict, there is no evidence that the conduct of defendants in this case crossed the line that stands between compensable negligence, even if it were found to be gross, and punishable conscious indifference. Cf. Hoffman v. Wells, 260 Ga. 588 (1, 3) (397 SE2d 696) (1990).

McMurray, Presiding Judge,

dissenting.

The sole issue in this medical malpractice case is whether the evidence was sufficient to support an award of punitive damages. In my view, the evidence was sufficient. Accordingly, I respectfully dissent.

“ ‘OCGA § 51-12-5 permits a jury to award punitive (exemplary) damages “(i)n a tort action in which there are aggravating circumstances, in either the act or the intention . . .” It is well established that that language means such damages “cannot be imposed in any case unless there is willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. (Cit.)” (Cit.)’ Rossville Apts. Co. v. Britton, 178 Ga. App. 194 (1) (342 SE2d 504) (1986). ‘ “ ‘The latter expression (conscious indifference to consequences) relates to an intentional disregard of the rights of another, knowingly or wilfully, disregarding such rights.’ ” (Cits.) “ ‘Mere negligence, although gross, will not alone authorize the recovery of punitive damages.’ ” (Cits.)’ Associated Health Systems v. Jones, 185 Ga. App. 798, 802 (2) (366 SE2d 147) (1988).” Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 861 (389 SE2d 355).

“ ‘Ordinarily the imposition of punitive damages is an issue for the jury. However, the controlling criteria is whether there is any evidence to support such an award. (Cit.)’ Associated Health Systems, supra at 802 (2).” Petrolane Gas Svc. v. Eusery, supra at 862.

In the case sub judice, the evidence of negligence and causation was conflicting. The jury was authorized, however, to glean the following facts: Plaintiff underwent cataract surgery on her right eye at the hands of the opthalmologist. She was the first case of the day.

General anesthesia was administered by the nurse anesthetist under the supervision of the anesthesiologist. The nurse anesthetist was an employee of the anesthesiologist’s professional corporation.

One of the complications which can arise during eye surgery is vitreous extrusion. This can occur as a result of various factors, including a rise in intraocular pressure after incision.

A rise in intraocular pressure can accompany a rise in blood pressure. It can also occur when an eye surgery patient moves on the operating table. Thus, it is imperative for an eye surgery patient’s blood pressure to remain in the lower ranges and for the patient to remain immobile once the eye has been opened surgically.

It was the responsibility of the anesthesiologist and the nurse anesthetist to insure that plaintiff’s blood pressure remained stable and that plaintiff did not move during surgery. These goals were to be accomplished by the administration of anesthetic agents.

One of the anesthetic agents which plaintiff was administered during surgery was Forane. There was evidence that the nurse anesthetist neglected to check the level of Forane in the anesthesia machine before administering anesthesia to plaintiff.

After plaintiff was put to “sleep,” the ophthalmologist made an incision in her right eye and removed the cataract. Just before the lens implant was to be inserted, plaintiff became anesthetically “light.”

An expert testified that when a patient becomes “light” anesthetically, she undergoes an “emergence phenomenon” and shows “signs of waking up.” These signs include a quickening pulse, increased blood pressure, eye pressure elevation and movement.

Decided July 16, 1991

Reconsideration denied July 31, 1991

Love & Willingham, Daryll Love, Kimberly L. Woodland, for appellants.

Williams & Henry, Benjamin S. Williams, Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., for appellee.

When the patient became anesthetically “light,” she suffered a loss of vitreous. At that point, it became necessary for the ophthalmologist to perform a vitrectomy and he could no longer insert the lens implant. Ultimately, plaintiff developed cystoid macula edema (a swelling of the nerve fiber in the back of the eye) due to vitreous extrusion. The result was a loss of vision in plaintiff’s right eye.

There was expert testimony that plaintiff became anesthetically “light” because the anesthesia machine ran out of Forane in the midst of plaintiff’s surgery. This would not have occurred if the anesthesia machine had been checked before plaintiff’s surgery began.

The anesthesiologist admitted that the Forane should not have run out during plaintiff’s surgery and that the failure to check the level of Forane in the anesthesia machine before plaintiff underwent surgery was a “complete violation of the standard of care.” The ophthalmologist likened the failure to check the level of Forane before surgery to failing to check the level of gas before flying a private plane.

In Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 175 (2) (355 SE2d 104), this Court held that the failure of the hospital’s nurses to convey knowledge of a patient’s heart condition and medication to a physician “evinces that entire want of care which would raise the presumption of a conscious indifference to the consequences.” Id. Accordingly, this Court found the evidence in that case to be sufficient to support the jury’s award of punitive damages.

In my view, the jury was entitled to conclude that the failure to check the level of anesthesia before plaintiff underwent eye surgery also “evinces that entire want of care which would raise the presumption of a conscious indifference to the consequences.” Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 175 (2), supra. It follows that the jury’s award of punitive damages should stand.

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


author: Sognier, Chief Judge. Beasley, Judge, Carley, Judge,

text:
    A91A0233.
    UNITED PARCEL SERVICE, INC. v. UNIVERSAL DIAMOND CORPORATION, INC.
    (409 SE2d 558)
   Sognier, Chief Judge.

Universal Diamond Corporation, Inc. brought suit against United Parcel Service, Inc. to recover damages for United Parcel’s alleged breach of two agreements to collect “cash only” for C.O.D. shipments made by Universal Diamond. The parties filed cross motions for summary judgment. The trial court granted Universal Diamond’s motion and denied that of United Parcel, and United Parcel appeals.

On November 25, 1988, and again on November 29, 1988, appellee contracted with appellant for C.O.D. delivery by next day air service of two shipments of jewelry valued at $15,000 and $13,500 respectively. For each shipment, appellee’s president, Amos Agami, and a sales representative of appellant filled out a bill of lading and a C.O.D. tag. The bill of lading required appellee to check the box beside the manner of payment preferred, choosing among “check,” “cash,” or various types of credit, and on each form Agami checked “cash.” The shipper instructions printed on the C.O.D. tag provided that “ ‘CASH ONLY’ MUST BE ENTERED ON INSTRUCTION LINE AND BOX CHECKED ON RECEIPTS IF DRIVER IS NOT AUTHORIZED TO ACCEPT CHECK.” Agami complied with both of these directives, placing a check in the box next to the instruction to “CHECK HERE IF CASH ONLY” and writing the words “CASH ONLY” in the space provided for instructions. Appellant accepted cashier’s checks for both shipments. Appellee rejected these payments as not in conformance with the contractual requirement, and the checks were subsequently proved to be counterfeit.

Appellant contends the trial court’s ruling was erroneous either because the contracts between the parties clearly authorized it to accept cashier’s checks, or, in the alternative, because the term “cash only” is ambiguous and should be construed to mean near-cash equivalents such as cashier’s checks. We do not agree. Although appellant cites numerous cases, many of which are from other jurisdictions, analyzing the meaning of the term “cash” and interpreting it to include methods of payment other than currency, this argument ignores the fact that in the agreements at issue, the term “cash” was modified by the word “only.” We find the inclusion of the word “only” clearly meant that the term “cash” was used in its narrowest sense to mean “only currency.” See Black’s Law Dictionary, 5th ed., p. 982 (“only” means “[s]olely; merely; for no other purpose; ... of or by itself; without anything more; exclusive; nothing else or more”). Kerlin v. Young, 159 Ga. 95, 102, 103 (1) (125 SE 204) (1924), cited by appellant and the dissent, is not applicable because there the contract used the term “cash” with no qualifying language. The Air Service Guide promulgated by appellant to explain its next day air service cannot be used to create an ambiguity because its provisions were neither referenced by nor incorporated into the contracts between the parties. Compare ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223, 225-226 (2) (338 SE2d 733) (1985).

There being no ambiguity in the contractual requirement that appellant accept only currency and no material factual dispute concerning what appellant accepted from the consignee, the only question remaining is whether the payments complied with the contractual requirement as a matter of law. Since the acceptance of a cashier’s check constituted a breach as a matter of law of appellant’s contractual obligation to accept only currency, appellee was entitled to summary judgment. Accordingly, we affirm the grant of appellee’s motion and the denial of appellant’s motion.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope, Cooper and Andrews, JJ., concur. Beasley, J., concurs specially. Banke, P. J., and Corley, J., concur in part and dissent in part.

Beasley, Judge,

concurring specially.

I concur in the majority opinion.

The dissent seeks to leave to the jury whether the parties intended “cash only” to include a cashier’s check. Such is “a check drawn by a bank upon its own funds and signed by the cashier.” Webster’s 3rd New Inti. Dictionary. See OCGA § 11-3-104 (2b) for TJCC definition of “check.” The reason given in the dissent is that the word “cash” has been stated to mean “money or its equivalent.”

Even if “cash only” were accorded such meaning in this case, it is undisputed that the instrument obtained was not money or its equivalent because it was a forged cashier’s check. It was not a medium of ready exchange because it was worthless. To be equivalent, it had to have the same value as the sum it purportedly represented, but it had none. The intent behind the use of the words “cash only,” giving significance not only to the word “cash” but also to the emphasis word “only,” which itself is certainly not ambiguous, was obviously to protect UPS’ customer from the collection of a valueless or problematic form of payment.

Carley, Judge,

concurring in part and dissenting in part.

In my opinion, the term “cash only” is ambiguous and that ambiguity remains after applying the rules of construction. Accordingly, I concur in the affirmance of the denial of appellant-defendant’s motion for summary judgment, but I must dissent to the affirmance of the grant of appellee-plaintiff’s motion for summary judgment.

“ ‘The word “ambiguity” has been variously defined by the courts, but for the purpose of this case it is sufficient to say that a word or phrase is ambiguous only when it is of uncertain meaning, and may be fairly understood in more ways than one.’ [Cits.]” Burden v. Thomas, 104 Ga. App. 300, 302 (121 SE2d 684) (1961). “The word, ‘cash,’ means money — usually, ready money — but it also means money or its equivalent.” (Emphasis supplied.) Kerlin v. Young, 159 Ga. 95, 102 (1) (125 SE 204) (1924). Thus, “cash” may be employed in a narrow sense as “currency” or in a broader sense as “either currency or its equivalent.” Since the term “cash” may be fairly understood in either of these two ways, it follows that the term is ambiguous.

The term “cash only” is not any less ambiguous than the term “cash.” “Cash only” may mean “cash or nothing,” so that appellant’s acceptance of “credit” or anything other than “cash” would not be authorized. However, “cash only” does not necessarily mean “currency or nothing,” so that appellant’s acceptance of a “currency equivalent” would not be authorized. “Only” narrows the scope of appellant’s contractual performance to the acceptance of “cash” and the refusal of “credit,” but “only” does not further define the term “cash” itself so as to narrow the scope of appellant’s contractual performance to the acceptance of “currency” and the refusal of a “currency equivalent.” “Court definitions of cash vary with the circumstances presented by a particular case. [Cits.] Only a few courts, however, have directly addressed the question whether a cashier’s check constitutes cash for a specific transaction. [Cits.]. . . . Based on the multiplicity of definitions of the term ‘cash’ and the widespread view that cashier’s checks circulate as cash in modern transactions . . ., we find that the term ‘cash only’ was ‘fairly susceptible of more than one construction.’ . . .” (Emphasis supplied.) National Diamond Syndicate v. United Parcel Svc., 897 F2d 253, 257 (7th Cir. 1990).

Likewise, the term “cash only” would not render appellant the insurer of the payment that it accepted on behalf of appellee. By agreeing to accept “cash only,” appellant did not insure that any currency that it accepted would not be counterfeit or that any currency equivalent that it accepted would not be forged. The issue is whether the form of the payment was or was not “cash,” not whether the payment, regardless of its form, was legal. Either a cashier’s check was or was not “cash,” so that its acceptance was or was not authorized. If it was, then appellant had satisfied its contractual obligation to appellee and the forgery would be a civil issue as between appellee and the forger and a criminal issue as between the forger and the State.

Since “cash only” is, in my opinion, ambiguous, I believe that resolution of the instant case is ultimately dependent upon whether that ambiguity remains after applying the rules of construction. ‘“[T]he fundamental rule, the rule which swallows up almost all others in construing a paper, is to give it that meaning which will best carry into effect the intent of the parties.’ [Cit.] . . . “‘ ‘(T)he intention of the parties may differ among themselves; in such cases the meaning placed on the contract by one party and known to be thus understood by the other party [at the time of its execution] shall be held as the true meaning.’ ” (Cit.)’ [Cit.]” Bemco Mattress Co. v. Southeast Bedding Co., 196 Ga. App. 509, 510-511 (1) (396 SE2d 238) (1990); OCGA § 13-2-4. There is evidence which would authorize a finding that appellant knew that appellee understood “cash only” to mean “currency only” and that appellant even confirmed appellee’s understanding in this regard. According to the deposition of appellee’s president, when he wrote the “cash only” instruction, he asked appellant’s employee, “Green stuff?” and the employee responded, “Yes, sir.” However, this evidence is not undisputed. According to the deposition of appellant’s employee, he could not recall such a conversation with appellee’s president and had never told a customer that “cash only” means “green stuff.”

Decided July 15, 1991

Reconsideration denied July 31, 1991

Hicks, Maloof & Campbell, Peter J. Quist, Henry F. Sewell, Jr., for appellant.

Zimmerman & Associates, Barry L. Zimmerman, Keith F. Brandon, Kim G. Meyer, for appellee.

Where a matter of fact is involved, as where there is evidence tending to show that the meaning of an ambiguous word was known by one of the parties to a contract to be understood in one way by the other party to the contract (see California Ins. Co. v. Blumburg, 101 Ga. App. 587, 591-592 (2) (115 SE2d 266) (I960)), “the jury should find the fact.” OCGA § 13-2-1. See also Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986). Since the evidence demonstrates the existence of a genuine issue of material fact as to appellant’s awareness of appellee’s understanding that the ambiguous term “cash only” was employed in the narrow rather than broad sense, I would hold that the trial court erred in granting appellee’s motion for summary judgment. However, the trial court properly denied appellant’s motion for summary judgment.

I am authorized to state that Presiding Judge Banke joins in this opinion.


author: McMurray, Presiding Judge. Sognier, Chief Judge,

text:
    A91A0250.
    AMERICAN HOME ASSURANCE COMPANY v. McCladdie.
    (409 SE2d 576)
   McMurray, Presiding Judge.

American Home Assurance Company (“American Home”) filed a declaratory judgment action against Alvin McCladdie, seeking to absolve itself of liability for additional optional personal injury protection (“PIP”) benefits under an automobile liability insurance policy issued to McCladdie’s mother, America Luke (“the insured”). American Home alleged that McCladdie sustained personal injuries on October 26, 1986, when he wrecked a vehicle covered under the insured’s “renewal” policy; that McCladdie was paid maximum policy PIP benefits in the amount of $2,500 and that defendant has demanded an additional $45,000 in coverage “by virtue of letters written by his counsel to the adjusting company handling this claim. . . .” McCladdie admitted that his mother’s policy is a “renewal” policy and that he wrecked an insured vehicle during the “renewal” period. He also admitted that American Home paid him $2,500 in benefits and that his attorney made a demand for additional coverage and an offer to pay premiums for the additional coverage. McCladdie then counterclaimed for optional benefits, claiming that American Home’s “application for insurance does not comply with O.C.G.A. Section 33-34-5 . . . inasmuch as the application does not contain the required language in bold face print.”

The parties filed opposing motions for summary judgment and the undisputed evidence shows that the insurance application contains a statement indicating that the optional coverage was explained to the insured, but that the statement is not in boldface type. The insured deposed that she applied for the American Home insurance policy through an insurance agency; that “all of the blanks contained on the application for insurance were filled in by the agent . . . who sold her the insurance” and that “[t]he agent who completed the application for insurance did not explain optional no-fault insurance coverage. . . .” The insured further deposed that she “accepts American Home Assurance Company’s continuing offer for optional PIP coverage, makes demand upon American Home Insurance Company for optional PIP coverage and stands ready to pay the premium for such coverage.”

The trial court entered summary judgment for McCladdie and against American Home, finding that McCladdie is entitled to additional PIP benefits because the insurance application failed to contain a “boldfaced type” statement indicating that the optional coverage was explained to the insured. This appeal followed. Held:

1. American Home contends the trial court erred in granting summary judgment to McCladdie because the application for insuranee is in substantial compliance with the requirements of OCGA § 33-34-5 (b). This contention is without merit.

In Southern Guaranty Ins. &c. v. Goddard, 259 Ga. 257 (379 SE2d 778), the Supreme Court of Georgia held that insurers are required to strictly comply with the standards of OCGA § 33-34-5 (b) and that this Code section “mandates that for there to be an effective rejection of additional coverage, the application must (1) contain a statement that the optional coverage required by the statute to be offered has been explained to the applicant, (2) that the statement be in boldface, and (3) that the statement be signed by the applicant.” Id. at 258. Consequently, since the insurance application did not include a boldface typed statement that the optional coverage has been explained to the applicant, we affirm the trial court’s finding that additional benefits are available under the policy. Southern Guaranty Ins. &c. v. Goddard, 259 Ga. 257, 258, supra.

2. American Home contends the trial court erred in granting summary judgment to McCladdie, arguing that the “renewal” policy is not subject to the requirements of OCGA § 33-34-5 (b).

OCGA § 33-34-5 (d) provides that “[t]he provisions of subsection (b) of this Code section requiring explanation of the optional coverages shall not apply upon the renewal, replacement, reinstatement, transfer, or substitute of any policy or the addition or substitution of a motor vehicle covered by such policy.” However, this Code subsection does not cure noncompliance with the mandatory application requirements of OCGA § 33-34-5 (b). To say otherwise would allow abrogation of the “boldface type” requirement of OCGA § 33-34-5 (b) by the mere issuance of a “renewal” policy. Consequently, American Home is not relieved of liability for additional benefits simply because McCladdie was covered under a “renewal” policy. This enumeration is without merit.

3. American Home contends McCladdie has no standing to recover additional benefits, arguing that the insured never made a demand for increased coverage and never offered to pay premiums for the additional coverage. This enumeration is not supported by the record. The insured filed an affidavit and therein ratified McCladdie’s attorney’s demand for additional coverage and offer to pay additional premiums. Compare Maryland Cas. Ins. Co. v. Johnson, 198 Ga. App. 328 (401 SE2d 75).

Judgment affirmed.

Banke, P. J., Carley, Pope and Cooper, JJ., concur. Sognier, C. J., Birdsong, P. J., Beasley and Andrews, JJ., dissent.

Sognier, Chief Judge,

dissenting.

I respectfully dissent.

The majority concludes in Division 2 that, notwithstanding the clear language of OCGA § 33-34-5 (d) that “[t]he provisions of subsection (b) . . . requiring explanation of the optional coverages shall not apply upon the renewal ... of any policy,” subsection (b) nonetheless applies to the renewal policy in the case at bar. I cannot agree.

Prior to 1982, subsection (d) of OCGA § 33-34-5 (formerly Ga. Code Ann. § 56-3404b (d)) would have required the result reached by the majority, for at that time the statute provided that “[t]he optional coverage required to be offered under this [s]ection need not be offered upon the renewal of any policy where the offer has been previously made by the same insurer and has been rejected in accordance with this [s]ection unless the named insured requests such coverage in writing.” Ga. Laws 1975, pp. 3, 4, § 1. Thus, under the former version of OCGA § 33-34-5 (d), appellant would not have been relieved from compliance with the coverage explanation provisions of subsection (b) because it did not properly comply with those provisions when the policy was originally issued. See Drexler v. Ga. Farm Bureau Mut. Ins. Co., 171 Ga. App. 718, 720-721 (2) (320 SE2d 854) (1984), rev’d on other grounds, 254 Ga. 98 (326 SE2d 741) (1985).

However, in 1982 the General Assembly amended Chapter 34 of Title 33 “to change the provisions relative to optional coverages; [and] to change the provisions relative to the form of applications for motor vehicle accident insurance,” Ga. Laws 1982, p. 1234, and as part of the enactment deleted the existing version of OCGA § 33-34-5 (d) and substituted the version in effect today. Ga. Laws 1982, pp. 1234, 1236, § 1. When construing the recodification of a previously existing statute, the court must construe the subsequent provision consistently with its predecessor “unless a contrary construction manifestly appears from the words employed. [Cit.]” TEC America v. DeKalb County Bd. of Tax Assessors, 170 Ga. App. 533, 537 (317 SE2d 637) (1984). “ ‘ “From the addition of words it may be presumed that the legislature intended some change in the existing law . . . .” (Cit.)’ [Cit.]” Id. I conclude from the legislature’s deletion and addition of words in the 1982 enactment, coupled with the statement in the preamble thereto of an intent to “change” the law, see Taylor v. Mateer & Co., 117 Ga. App. 565, 567 (161 SE2d 394) (1968), that it “manifestly appears” the 1982 revision to OCGA § 33-34-5 (d) was intended to change the existing law. See generally TEC America, supra at 537-538 (2). Since the General Assembly is presumed to have been familiar with the pre-existing version of OCGA § 33-34-5, if its intent in 1982 had been to clarify or extend the scope of that law, it would have left subsection (d) intact. See id. at 538 (2). Therefore, the enactment of a new version of subsection (d) can lead only to the conclusion that the General Assembly intended to change OCGA § 33-34-5 so as to exempt from the optional coverage explanation requirement all renewal policies, regardless of whether the statutory explanation was given when the policy was originally issued. See generally id. To hold otherwise would require a construction that would render meaningless the 1982 amendment to subsection (d), which this court cannot do. Buice v. Dixon, 223 Ga. 645, 646-647 (157 SE2d 481) (1967).

Decided July 16, 1991

Reconsideration denied July 31, 1991

Duncan & Mangiafico, Edgar S. Mangiafico, Jr., for appellant.

Bell & Bell, David B. Bell, for appellee.

Accordingly, I find that OCGA § 33-34-5 (d) controls the issue on appeal adversely to appellee, and I would reverse the trial court’s ruling with direction to enter summary judgment for appellant.

I am authorized to state that Presiding Judge Birdsong, Judge Beasley and Judge Andrews join in this dissent.


author: Andrews, Judge.

text:
    A91A0382.
    KING v. THE STATE. ODOM v. THE STATE.
    A91A0383.
    (409 SE2d 865)
   Andrews, Judge.

King and Odom were jointly tried and convicted on charges of trafficking in cocaine. King was additionally convicted of giving a false name to a law enforcement officer, conspiracy to distribute cocaine, and possession of a sawed-off shotgun. Odom was also convicted of using a communication facility (a telephone) to facilitate the sale of cocaine.

The evidence against the defendants was primarily gathered as the result of three search warrants. Based on information collected in an ongoing narcotics investigation, the first investigative warrant was issued pursuant to OCGA § 16-11-64 for the electronic surveillance of the telephone line at King’s place of business. Based on intercepted telephone conversations between Odom from the telephone at her residence to King on the monitored line, a second conventional search warrant was issued for cocaine located at Odom’s residence. The execution of that warrant produced over 28 grams of cocaine. Based on additional intercepted telephone conversations and other information, a search warrant was issued for records of drug transactions and monies located at King’s residence, where officers found miscellaneous records, money, a sawed-off shotgun and over 1,000 grams of cocaine.

On various grounds the defendants moved to suppress the evidence secured under these warrants, and on appeal claim the trial court erred by denying their motions to suppress.

1. In their first common enumeration of error, King and Odom argue that the State’s application for the wiretap warrant was not introduced into evidence, therefore there is no proof that the application was made under the proper authority in compliance with the requirements of OCGA § 16-11-64 and 18 USC § 2516. Contrary to the defendants’ contentions, during the suppression hearing the defendants themselves introduced a copy of the application for the investigative warrant into evidence.

The application was sufficient to demonstrate the State’s compliance with the statutory requirements. “When there is probable cause to believe that a person is committing or has committed [certain crimes], then, upon written application, under oath, of the district attorney of the circuit wherein the device is to be physically placed, or the Attorney General, . . . any judge of the superior court of the circuit aforesaid may issue an investigation warrant permitting the use of devices, as defined by Code Section 16-11-60, for the surveillance of such person or place. . . .” (Emphasis supplied.) OCGA § 16-11-64 (b) (l).

The application reflects that it was made in writing under oath to the appropriate superior court judge, by the district attorney of the circuit where the wiretap was placed. There was no error in denying the defendants’, motion to suppress on this ground.

2. In their second enumeration of error both defendants claim that the wiretap evidence should have been suppressed because the State failed to comply with the requirements of OCGA § 16-11-64 (b) (5), which provides: “The application for any investigation warrant under this Code section, any supporting evidence in connection therewith, and any entry of the issuance of an investigation warrant as a result thereof shall remain confidential and in the custody of the judge and shall not be released nor information touching same in any manner be disclosed, except upon written order of the judge or except at the time of trial of the case in which such evidence is used or in which evidence derived from such surveillance is used.” This section of the State law and its federal counterpart (18 USC § 2518 (8) (b)) relate to protecting the confidentiality of the government’s investigation and the authenticity of the application and related documents. United States v. Florea, 541 F2d 568, 575 (6th Cir. 1976).

In the instant case after the wiretap warrant was issued by the court, the officer obtained a certified copy of it for service upon the telephone company. Thereafter, the warrant and application were kept under lock at the police department. There is no evidence that the contents of the documents were disclosed outside of law enforcement officers involved in the prosecution of the case or altered in any way. Moreover, the testimony established a chain of custody sufficient to establish with reasonable certainty that the documents were not publicly disclosed or altered. Gilstrap v. State, 162 Ga. App. 841, 843 (292 SE2d 495) (1982). While the section of the statute relating to disclosure of information gathered under the wiretap (OCGA § 16-11-64 (b) (8)) contains a provision requiring exclusion of such evidence where it is improperly disclosed, we note that § 16-11-64 (b) (5) does not contain a similar exclusionary rule with respect to handling of the application and related documents. Accordingly, despite the State’s failure to strictly comply with the statutory requirements of this section, in the absence of evidence that the documents were improperly disclosed or tampered with, we find no error requiring suppression of the wiretap evidence.

3. Both defendants argue in their enumeration of error number three that disclosure of evidence obtained under the wiretap warrant to the federal Drug Enforcement Agency (DEA) and the United States Attorney was a violation of the non-disclosure provisions of OCGA § 16-11-64 (b) (8), which limit such disclosure to those instances where it is “necessary and essential to the preparation of and actual prosecution for the crime specified in the warrant. ...” A violation of this section, which contains an express exclusionary provision, renders the wiretap evidence inadmissible. Ledesma v. State, 251 Ga. 885, 889 (311 SE2d 427) (1984).

The State released the wiretap information to the DEA to pursue evidence of interstate drug traffic in connection with the current investigation, and to the U. S. Attorney to pursue forfeiture proceedings against property used in connection with the present criminal charges. We find both of these disclosures proper. Where a local investigation leads to evidence of interstate criminal activity, it is reasonably necessary and essential to disclose this evidence to other law enforcement agencies authorized to pursue the interstate aspects of the investigation. Orkin v. State, 236 Ga. 176, 189 (223 SE2d 61) (1976). It was also reasonably necessary and essential to full preparation for and actual prosecution of the crime under investigation, to disclose wiretap information to the U. S. Attorney for civil forfeiture proceedings against crime-related property used in the criminal activity specified in the warrant. See Waller v. State, 251 Ga. 124, 128 (303 SE2d 437) (1983), rev’d on other grounds, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984) (cooperation between law enforcement agencies necessary and essential to imposing sanctions against interrelated patterns of criminal activity under RICO statute).

4. In his fourth enumeration of error, King claims the State conducted an illegal, warrantless search of his residence, the results of which should have been suppressed. Based on conversations intercepted in the wiretap, the State had probable cause to believe that records of drug transactions were located at King’s residence. A search warrant, valid for ten days, was issued for these items on November 9, 1989. When the warrant was executed on November 12, 1989, while King was present, officers found miscellaneous records, a sawed-off shotgun, and over 1,000 grams of cocaine in plain view as they entered the residence.

Apparently King claims the three-day delay in executing the warrant rendered it invalid, or that it was used as a pretext for a general search for the cocaine not named in the warrant. During the three days after its issuance, and prior to its execution, wiretap interceptions tipped officers that a quantity of cocaine was likely to be delivered to the residence, yet they took no action to secure a warrant to search for cocaine. Execution of the warrant after three days was proper since a warrant may be executed at any reasonable time within ten days after issuance. OCGA §§ 17-5-25 and 17-5-26; State v. Banks, 185 Ga. App. 760, 762 (365 SE2d 855) (1988). Nor was seizure of the cocaine illegal because it was not accomplished pursuant to a search warrant. Even though officers deliberately executed the search warrant for the records at a time when, based on the wiretap interception, they believed cocaine would be present, “[t]he fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement.” Horton v. California, 495 U. S _ (110 SC 2301, 110 LE2d 112, 124) (1990) (abolishing the rule evolving from the plurality opinion in Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564) (1971)), that warrant-less seizures under the plain view doctrine must be inadvertent). Since the cocaine was found during the scope of a search authorized by the warrant, its seizure was authorized by the plain view doctrine.

5. In King’s fifth enumeration of error and Odom’s seventh enumeration of error, they claim the wiretap evidence should have been suppressed because the trial court failed to seal the recordings immediately upon termination of the wiretap pursuant to 18 USC § 2518 (8) (a). This section requires that immediately upon expiration of the investigative warrant the “recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders . . . The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom. . . .” 18 USC § 2518 (8) (a).

The wiretap order expired on November 14, 1989, at 9:19 p.m. The original recordings were sealed in boxes by a police officer on either November 15, or within a day or two after that time, during which period duplicates of the unsealed original recordings were made. The recordings were kept under lock until officers turned them over to the district attorney to file with the court. The report and return of the warrant filed by the district attorney pursuant to OCGA § 16-11-64 (b) (6) on November 21, 1989, indicates that the wiretap recordings are “hereby delivered to the custody of this court pursuant to Official Code of Georgia Ann. § 16-11-64 (b) (5) and 18 United States Code § 2518 (8) (a) for the issuance of such order relating to its further custody as this Court may deem proper.” There is no evidence of whether the court took any additional action with respect to sealing the tapes.

There is evidence of a day or two delay in the sealing of the recordings after expiration of the wiretap, and no evidence that the sealing was under the judge’s direction. However, King does not claim, nor is there any evidence, that the recordings were tampered with or altered in any fashion. The State demonstrated with reasonable certainty that the recordings were protected from accidental or deliberate alteration prior to being sealed, and the short delay in sealing was excusable and satisfactorily explained as attributable to the administrative necessity of making accurate copies of the originals. United States v. Rios, 495 U. S. _ (110 SC 1845, 109 LE2d 224, 234-236) (1990). The “primary thrust of 2518 (8) (a) . . . is to insure the reliability and integrity of evidence obtained by means of electronic surveillance. The presence or absence of a seal does not in itself establish the integrity of electronic surveillance tapes. .Rather, the seal is a means of ensuring that subsequent to its placement on a tape, the Government has no opportunity to tamper with, alter, or edit the conversations that have been recorded.” Id. at 109 LE2d 234. Although the recordings were apparently not delivered to the judge until approximately six days after the wiretap expired, evidence indicates they were sealed within a day or two after the warrant expired. In the absence of any evidence of prejudice to King or Odom resulting from the delay, or any showing that the integrity of the recordings was violated, we find no violation requiring suppression under 18 USC § 2518 (8) (a). Gilstrap, supra at 842-843.

6. In her fourth and fifth enumerations of error Odom asserts that the State violated OCGA §§ 16-11-64 (b) (5); 16-11-64 (b) (1) (B) and 18 USC § 2510 et seq. by disclosing wiretap evidence to a magistrate to obtain a search warrant for her residence without prior approval of the judge issuing the wiretap warrant. There is no merit to these claims.

Decided March 14, 1991

Reconsideration denied July 31, 1991

Herbert Shafer, for appellants.

Robert E. Wilson, District Attorney, Gregory A. Adams, Michael D. Thorpe, Assistant District Attorneys, for appellee.

OCGA § 16-11-64 (b) (5) relates to maintaining the confidentiality and authenticity of the application and related documents, and has no bearing on disclosure of information obtained during the wiretap, which is covered by OCGA § 16-11-64 (b) (8) and 18 USC § 2581 (8) (b). Disclosure of this information to obtain a search warrant of Odom’s residence directly related to the crime specified in the wiretap warrant was proper under 18 USC § 2517 and OCGA § 16-11-64 (b) (8). There is no authority requiring the judge who issued the wiretap warrant to supervise such disclosures during the period of the wiretap. Morrow v. State, 147 Ga. App. 395, 398 (249 SE2d 110) (1978).

As to the alleged violation of OCGA § 16-11-64 (b) (1) (B), this section authorizes a superior court judge, upon proper application, to issue an investigative warrant employing electronic surveillance devices as defined in OCGA § 16-11-60. It does not control the issuance of a regular search warrant by a magistrate based on information gathered in the wiretap.

7. Odom’s sixth enumeration of error was withdrawn.

8. We decline to address the defendants’ additional contentions addressed to their common enumerations of error one and three in their joint supplemental brief filed after the deadline, as extended, under Rule 14. Since these contentions allege additional errors not raised or supported by authority or argument in the initial briefs, they are deemed abandoned under Rule 15 (c) (2), and may not be “ ‘resurrect [ed] from abandonment’ ” in the supplemental brief. Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564) (1985).

Judgments affirmed.

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

       Arguments with respect to the electronic surveillance warrant are addressed variously to the federal and state statutes governing wiretaps. Georgia law “must meet the minimum standards of [the federal law] in protecting privacy but may impose more stringent requirements and any interception must conform to both the state and federal law.” Ellis v. State, 256 Ga. 751, 754 (353 SE2d 19) (1987).

       18 USC § 2516 contains the federal provisions governing authorization to apply for an electronic surveillance order, and provides that a state statute may authorize the principal prosecuting attorney of any political subdivision to apply to a state court for such order.