American Oil Co. v. Roper

• Decision Date: 18 March 1941
• Docket Number: 28769.
• Citation: 14 S.E.2d 145,64 Ga.App. 743
• Parties: AMERICAN OIL CO. v. ROPER.
• Court: Georgia Court of Appeals

14 S.E.2d 145

64 Ga.App. 743

AMERICAN OIL CO. v. ROPER.

No. 28769.

Court of Appeals of Georgia, Division No. 2.

March 18, 1941

Rehearing Denied April 3, 1941.

Syllabus by the Court.

Shelton Pharr & Long, of Atlanta, for plaintiff in error.

W L. Hailey, of Hartwell, for defendant in error.

SUTTON Judge.

Phil Roper brought suit against American Oil Company and Harvey Sanders and alleged in substance that he entered into a verbal contract with the oil company through its agent Sanders, in which it was agreed that he was to operate for the company a filling station located in Hartwell, Georgia, and that he was to be paid as commission two cents per gallon for the gasoline sold through the filling station, as well as the difference between the wholesale and retail prices on all motor oil so sold, and that he was to receive all profits from the sale of merchandise, such as cold drinks, sandwiches, etc., and from the washing and greasing of cars; that Sanders persuaded him to enter into this agreement for a period of one year, commencing November 1, 1938, and that he took possession at that time and called on his friends and increased the business; that the defendant company had an employee named Walter Rhodes, who was a truck driver and handles the sales and collections, and that the plaintiff was directed to pay to Rhodes all cash received from customers and was promised a settlement at the end of each month; that he sought a settlement and a record of the sales but the defendants refused to furnish him a statement and stated that the company did not owe him any money but that the plaintiff was indebted to it. It was alleged that the defendant would not put any more gasoline in the pumps, and refused to sell the plaintiff any more gasoline, and pursued an arbitrary and illegal course of forcing him out of business contrary to the terms of the agreement; that the defendants are indebted to him in the sum of $287.83 for commissions on gasoline and motor oils sold; that they have caused him mental pain and suffering, embarrassment and humiliation before the public, and that by the fraudulent acts of the defendants he has been damaged in the sum of $2,500; that the agents of the company threatened him and used towards him oppressive language and the company had one of its attorneys threaten and use duress to force petitioner to abandon the premises of the company. Judgment was prayed for $2,500 actual and punitive damages.

The oil company filed general and special demurrers, and on February 17, 1940, the court passed an order sustaining the general demurrer and also the grounds as to misjoinder of parties and of causes of actions and two other special grounds, providing that "unless within ten (10) days plaintiff amends said petition to be dismissed." The plaintiff failed to file any amendment within the ten days. Between the date of the judgment on the demurrers and August 20, 1940, the plaintiff tendered an amendment but it was not allowed. In an order dated August 20, 1940, the judge recited that the amendment was, on motion of counsel for the plaintiff, withdrawn. On the same date the judge passed an order purporting to vacate nunc pro tunc the judgment of February 17, 1940, and also passed an order sustaining the general demurrer of the defendant oil company and grounds of demurrer as to misjoinder of parties and of causes of action, subject to amendment to meet the objections and electing between a cause of action for breach of contract and a cause of action in tort. Certain other grounds were sustained under the same provisions, some subject to amendment, and some were overruled. On the same date the trial judge passed an order in which was recited: "The motion to disallow the proffered amendment in view of the order passed this date on the general and special demurrers of defendants to plaintiff's original petition, the same is refused and disallowed, plaintiff having announced in court that his action is an action in delicto and not ex contractu, and that he is asking solely for recovery of damages occasioned by the tort and not for the breach of the contract."

On August 26, 1940, the case was called for trial and counsel for the defendants objected to proceeding upon the ground that there was no case pending, inasmuch as by an order of the court on February 17, 1940, sustaining a general demurrer to the petition the case was dismissed, no amendment having been filed and allowed pursuant to the terms of said order. The court overruled the objections and directed that the case proceed, whereupon counsel for the oil company, expressly reserving its objections to proceeding, presented its written motion to set aside and declare a nullity the order of August 20, 1940, vacating nunc pro tunc the order of February 17, 1940, upon the ground that said nunc pro tunc order was null and void and without authority of the court, no motion to vacate having been made on February 17, 1940, and no order of court having been orally made vacating said order of February 17, 1940. The trial judge overruled the motion and again directed that the case proceed. The defendant oil company then presented to the court a motion to revoke and set aside the two orders of the court dated August 20, 1940, wherein the court overruled the motion of defendant to disallow the plaintiff's amendment. The motion was overruled. Counsel for the defendant then presented to the court a motion to declare a nullity and set aside and vacate the order of court dated August 20, 1940, wherein the court made certain rulings on defendant's demurrers to the original petition. The motion was overruled. Counsel for the defendant then presented to the court a motion to enter a final judgment for the defendant on the ground that the case had been dismissed pursuant to the order of February 17, 1940. The motion was overruled. Defendant then tendered its exceptions pendente lite to the four orders of the court dated August 20, 1940, which exceptions were certified and ordered filed. On the date the case was called for trial counsel for the plaintiff tendered an amendment or revised petition. Counsel for the defendant presented its four objections to the allowance of the amendment or revised petition, all of which objections were overruled and the revised petition of plaintiff was allowed subject to demurrer. Counsel for the defendant then demurred generally to the petition as amended. The demurrer was overruled. Thereafter the defendant, American Oil Company, filed its exceptions, bringing to this court for decision all of the rulings of the court adverse to the defendant oil company.

While the record discloses quite a variety of pleadings and rulings in the present case, we think it may readily be disposed of by a consideration limited to the effect of the order of the court of February 17, 1940, in respect to the demurrers to the original petition, and the merits of the general demurrer to the amended or revised petition of August 26, 1940. Whether the court was not authorized to enter at a subsequent term, on August 20, 1940, a nunc pro tunc order setting aside the judgment of February 17, 1940, sustaining the general demurrer and special demurrers to the original petition, as contended by cou...