Development Corp. of Georgia v. Berndt

• Citation: 205 S.E.2d 868,131 Ga.App. 277
• Decision Date: 26 February 1974
• Docket Number: 2,Nos. 1,3,No. 48678,48678,s. 1
• Parties: DEVELOPMENT CORPORATION OF GEORGIA et al. v. Helen V. BERNDT
• Court: United States Court of Appeals (Georgia)

Page 868

205 S.E.2d 868

131 Ga.App. 277

DEVELOPMENT CORPORATION OF GEORGIA et al. v. Helen V. BERNDT.

No. 48678.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 26, 1974.

Rehearing Denied March 14, 1974.

Arnall, Golden & Gregory, William R. Harp, Allen, I. Hirsch, Atlanta, for appellants.

Herbert T. Jenkins, Jr., Snellville, Fred W. Minter, Decatur, for appellee.

Syllabus Opinion by the Court

BELL, Chief Judge.

Plaintiff brought suit alleging that she had performed services for the defendant corporation since 1964 and that the value of the services amounted to $100,000. Defendants' motion for a directed verdict was denied. The jury returned a verdict for plaintiff for $8,000. Defendants' motion for judgment notwithstanding the verdict was also overrued. Held:

One ground asserted on the motion for directed verdict was the failure of plaintiff to prove the reasonable value of services rendered to and accepted by the defendants, an element essential to recovery on a quantum meruit basis. Code § 3-107. This ground has merit as plaintiff failed to carry her burden. Plaintiff testified that she had worked for these defendants under an express contract as a real estate salesman and that she had been paid her commissions earned under the terms of the contract. However, she testified that she had not been paid all the commissions due her; and 'according to my figures they owe me $8,000.00'; that she included this figure in the total amount claimed in her suit, $100,000; that the balance of her work consisted of 'trying to straighten out problems' for people she had sold lots to and trying to keep peace and harmony in the community; that based on her computation she had worked 21,480 hours for the defendants over a seven year period for which she had not been paid; and 'I think (the value of the services) it's worth a hundred thousand dollars.' All of this testimony presents no evidence by which the jury with any degree of certainty could determine the reasonable value of plaintiff's services as a whole. Please note that the cited testimony is all that is even remotely dealing with proof of value of services. Plaintiff offered nothing as to how either the $8,000 or $100,000 figure was computed. See Woodruff v. Trost, 73 Ga.App. 608, 37 S.E.2d 425. The question of damages cannot be left to speculation, conjecture and guesswork. Studebaker Corporation v. Nail, 82 Ga.App. 779, 62 S.E.2d 198; Bennett v. Assoc. Food Stores, Inc., 118 Ga.App. 711, 716, 165 S.E.2d 581.

It was error to deny the motions for directed verdict and for judgment notwithstanding the verdict. The judgment is reversed with direction to enter a judgment for defendants.

Judgment reversed with direction.

HALL and EBERHARDT, P. JJ., and QUILLIAN, CLARK and STOLZ, JJ., concur.

PANNELL, DEEN and EVANS, JJ., dissent.

DEEN, Judge (dissenting).

This appeal is from a motion for new trial or judgment notwithstanding the verdict in the alternative. I agree with the majority opinion that the plaintiff failed to show facts from which the jury could arrive at a verdict in the sum of $8,000 on a quantum meruit basis, for the reason that her testimony as to $8,000 allegedly due her as real estate commissions shows that some undetermined part of this amount is barred by the statute of limitation. However, the evidence, if believed by the jury, does show some compensable work by the plaintiff either for real estate commissions or efforts in behalf of the corporation accepted by it concerning its disagreements with other land purchasers. I therefore concur in the reversal but would grant a new trial and not a judgment notwithstanding the verdict. McClelland v. Carmichael Tile Co., 94 Ga.App. 645, 96 S.E.2d 202.

I am authorized to state that Judge PANNELL concurs in this dissent.

EVANS, Judge (dissenting).

The majority opinion reverses the trial judge, holding that defendant's motion for directed verdict and motion for judgment notwithstanding the verdict should have been granted.

But the majority overlooks the failure of defendant to make a proper motion for directed verdict. His motion was seemingly based upon plaintiff's claim being barred by the statute of limitation, but it is impossible to determine as to whether he sought a directed verdict as to the entire claim or only part of it. A motion for directed verdict must state the specific grounds therefor. Code Ann. § 81A-150(a). And said grounds must be set forth with specificity. Turk v. Jackson Electric Membership Corporation, 117 Ga.App. 631(1), 161 S.E.2d 430. A motion, like an objection to evidence, must be overrued if it is too broad, and levels its attack against the whole when only a part is subject thereto. Employers Liability, etc., Corp. v. Sheftall, 97 Ga.App. 398, 402, 403, 103 S.E.2d 143.

And of course a motion for judgment notwithstanding the verdict must be premised upon a valid motion for directed verdict. See: Code Ann. § 81A-150(b); Durden v. Henderson, 212 Ga. 807(1), 96 S.E.2d 362.

The complaint in this case was filed on June 29, 1972, and as no written contract was proven, all services rendered prior to June 29, 1968 were barred by the statute of limitation.

Plaintiff testified that her services as real estate salesman terminated prior to 1968, but that her services as public relations representative for defendant lasted until date of filing suit (Tr., p. 29), and thus four years of such services were not barred.

I find the plaintiff's version of her claim most remarkable, and perhaps a strain on the credulity of average jurors. She testified that she had worked for seven years for defendant on an average of 60 hours each week, and had not been compensated. This means she worked six 10-hour days in each week, having only the Sabbath on which to recuperate from her labors, and at the end of the first year, her employer did not pay her. Most employees would have been very much, discouraged at this turn of events, but she, with great patience, continued through a second year with the same negative results as to compensation. She worked on through a third, fourth, fifth and sixth year, with the same results, but rebelled at the end of the seventh year and insisted that her employer compensate her, and high time, it appears to me. Three years of this service was barred by the statute of limitation, as she did not have a written contract. The jury decided she was entitled to $8,000, and in my opinion this was strictly a question for the jury. They were not bound by her opinion as to the value of her services. Where opinion evidence is adduced as to the value of services or property, the jury may deal with such testimony as they see fit, and may render a verdict for a higher amount or lower amount than has been given in evidence by any witness. Baker v. Richmond City Mill Works, 105 Ga. 225(1), 31 S.E. 426; Reserve Life Ins. Co. v. Gay, 214 Ga. 2, 3, 102 S.E.2d 492; Smaha v. State Highway Department, 114 Ga.App. 60(1), 150 S.E.2d 327.

There was ample evidence in the record from which the jury could have arrived at the verdict of $8,000.

But...