General Gas Corp. v. Carn, s. 38651
Decision Date | 21 April 1961 |
Docket Number | 2,Nos. 1,Nos. 38651,3,38652,s. 38651,s. 1 |
Citation | 120 S.E.2d 156,103 Ga.App. 542 |
Parties | GENERAL GAS CORPORATION v. L. E. CARN. L. E. CARN v. GENERAL GAS CORPORATION |
Court | Georgia Court of Appeals |
1. (a) The trial court may grant a motion for summary judgment upon the whole case or for all the relief asked when it has properly determined that there exists no genuine issue as to any material fact.
(b) A primary purpose of the summary judgment procedure is to allow a party to pierce the allegations of the pleadings and show the truth to the court and receive judgment where there is no general issue of material fact, although an issue may be raised by the pleadings.
2. Where the contract is unambiguous, its construction is a question of law of the court. The contract in the present case was properly one for interpretation by the court.
The plaintiff below brought an action on an employment contract with the defendant corporation. In the contract the following language appeared: In the action the petitioner sought to recover under the above quoted clause 15 percent of the net profits of the Savannah and Brunswick Districts over and above $40,000 for the first three months of the year 1959, the petition alleging that he terminated his employment on April 1, 1959. The petition was twice amended, the second amendment charging in substance that the change in his monthly salary rate was in effect to offset the increase in his annual quota of net profits above which he was to receive 15 percent. This amendment also alleged that in the event his services were terminated during the calendar year the $40,000 quota was to be prorated for the portion of the year which expired before termination, and the net profits were to be compiled on the basis of net profit before taxes that has accrued up to the date of termination. The defendant's answer denied liability to the plaintiff in the amount of $4,546.64, which the plaintiff contended accrued to him during the period of his employment in 1959 under the 15 percent of net profits clause of the contract. The defendant admitted owing the plaintiff instead $46.46, which the defendant paid to the registry of the court.
The defendant filed a motion for summary judgment asking that such be entered for the plaintiff in the sum of $46.46. The supporting affidavit to the motion for summary judgment admitted the defendant corporation showed a net profit in the plaintiff's district for the first three months of 1959 in the sum of $40,310.92, and that for the calendar year 1959 the net profits totaled $90,296.28 in the district. The plaintiff countered by filing a motion to dismiss the defendant's motion for summary judgment. The plaintiff also filed his motion for summary judgment in the sum of $4,546.64. Supporting this motion was the plaintiff's affidavit which contended that the proper interpretation of the contract provision for his being paid 15 percent of the net profits above $40,000 annual quota was that this quota would be prorated for the part of the calendar year he worked and that, therefore, the annual quota applicable to the first three months of the year would have been $10,000 based on $40,000 for the entire year, and that under the terms of the contract he was entitled to 15 percent of the net profits over $10,000, thus entitling him to judgment in the amount set forth above. The trial judge, after hearing, overruled the plaintiff's motion to dismiss the defendant's motion for summary judgment and entered up a judgment in favor of the plaintiff in the sum of $1,886.11. In entering the judgment on the motion for summary judgment in favor of the plaintiff, the trial court found there was no genuine issue as to any material fact. The basis of the trial court's judgment was that it was the intent of the parties that the profits were to be calculated on a yearly basis only and cannot be calculated on the basis of the first three months, particularly as the business was seasonal and the profits varied substantially during the year. Therefore, the trial court subtracted the $40,000 exclusion provided in the contract of employment from the total profits for the year in the amount of $90,296.28. Under the terms of the contract as interpreted by the trial court, the plaintiff, if he had worked the entire year, would have been entitled to 15 percent of the difference between these two figures, which equals $7,544.44. Since the plaintiff worked only three-twelfths of the year, the trial court then entered judgment for three-twelfths of this figure, resulting in the judgment for the plaintiff of $1,886.11. The defendant excepted to the judgment on the motions for summary judgment, contending that it is contrary to law and that under the terms of the contract the plaintiff was entitled to only $46.46, which represented 15 percent of the profits in excess of $40,000 during the first three months of 1959.
In Case No. 38652 the plaintiff excepted to the judgment below overruling the plaintiff's general demurrer to the defendant's motion for summary judgment and also to the judgment in his favor in the amount of $1,886.11, the plaintiff contending that the trial court misinterpreted the contract provision which should have been interpreted to give the plaintiff judgment in then amount of $4,546.64. The plaintiff further excepted to the allowance of interest on the judgment from January 1, 1960, contending that the contract plainly allows interest from April 1, 1959.
In Case No. 38651, the defendant excepted to the judgment on the motion for summary judgment, contending that the plaintiff's judgment should have been $46.46, not $1,886.11, as rendered.
Hitch, Miller & Beckmann, Savannah, Martin, Snow, Grant & Napier, Macon, for General Gas Corp.
Cheatham, Bergen & Sparkman, Frank S. Cheatham, Jr., Savannah, for L. E. Carr.
The two questions determinative of this case are (1) whether the trial court erred in granting the motion for summary judgment and (2) if the summary judgment was properly granted, was it granted in the correct amount. Here the summary judgment was granted upon the whole case.
1. Under the Georgia summary judgment statute (Code Ann. Ch. 110-12), the function of the motion is to avoid a useless trial where there is no genuine issue as to any material fact. In no sense does the statute authorize the courts to sit as both judge and jury, for where there is a genuine issue as to any material fact a trial in the normal process is as absolutely essential today as it was prior to the enactment of the summary judgment procedure....
To continue reading
Request your trial-
Gray v. Com.
... ... The Attorney General acknowledges that the police knew that Gray was a potential suspect in the ... ...
-
Food Fair, Inc. v. Mock
...not for the trial judge or this court. See in this connection Benefield v. Malone, 112 Ga.App. 408, 145 S.E.2d 732; General Gas Corp. v. Carn, 103 Ga.App. 542, 120 S.E.2d 156; Bagley v. Firestone Tire & Rubber Co., 104 Ga.App. 736, 123 S.E.2d 179; Darby v. Interstate Life & Accident Ins. Co......
-
Anderson v. Crippen, 45027
...a jury to find against the plaintiff and for that reason the plaintiff must come forward with evidence (see General Gas Corp. v. Carn, 103 Ga.App. 542, 545, 120 S.E.2d 156; Germaine v. Webster's Shopping Center, Inc., 116 Ga.App. 547, 158 S.E.2d 682; Jerry Lipps, Inc. v. Lewallen, 118 Ga.Ap......
-
Holland v. Sanfax Corp., s. 39342
...v. Atlanta Transit System, 105 Ga.App. 70, 123 S.E.2d 693, supra; Scales v. Peevy, 103 Ga.App. 42, 118 S.E.2d 193; General Gas Corp. v. Carn, 103 Ga.App. 542, 120 S.E.2d 156; Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 104 Ga.App. 219, 121 S.E.2d 661; Studstill v. Aetna Cas. & C......