Grantham Transfer Co. v. Hawes, s. 25194
| Citation | 169 S.E.2d 290,225 Ga. 436 |
| Decision Date | 12 June 1969 |
| Docket Number | Nos. 25194,25195,s. 25194 |
| Parties | GRANTHAM TRANSFER COMPANY, Inc., et al. v. Peyton S. HAWES, Commissioner. Peyton S. HAWES, Commissioner v. GRANTHAM TRANSFER COMPANY, Inc., et al. |
| Court | Supreme Court of Georgia |
Syllabus by the Court
1. Where a summary judgment denies a motion for judgment but fails to state the grounds for so ruling, it cannot be held by a reviewing court to be the law of the case as to issues of fact or failure to make a prima facie case, and it will be disregarded in a case involving these questions.
2. Where the summary judgment ruling as above is affirmed by the Court of Appeals, and two of the five judges required to make that ruling concur in the judgment only and not in what is said in an opinion of only three judges (Undercofler v. Grantham Transfer Co., 114 Ga.App. 868, 871, 152 S.E.2d 900) (three judges affirming, two concurring in the judgment only (four judges dissenting) the judgment of affirmance alone fixes the law of the case and what only three said in an opinion is not a ruling of the court, has no legal significance, and may be disregarded by all courts.
3. Where six written instruments contain various obligations of the parties but provide for the rental of tangible personal property and fix the consideration as either for the use of the property or the mutual covenants and the use of such property they are construed as leases of tangible personal property, and hence the considerations therefor are subject to tax under the Sales and Use Tax Act (Ga.L.1951, pp. 360, 362; 1960, pp. 153, 154; 1967, p. 284; Code Ann. § 92-3402a).
4. Inasmuch as the transactions here involved are clearly taxable leases of tangible personal property under Code Ann. § 92-3402a, supra, no ruling is made on the constitutionality of the third unnumbered paragraph of § 4a of the amendment of 1955 (Code Ann. § 92-3448a; Ga.L.1955, p. 389), here under attack as being unconstitutional for the various reasons assigned.
5. The court also erred in holding that purchases by Grantham of tangible personal property of exclusive use in its leasing business were taxable.
This is a continuation of a sales and use tax case heretofore considered on appeal and reported in Undercofler v. Grantham Transfer Co., Inc., 114 Ga.App. 868, 152 S.E.2d 900, and 222 Ga. 654, 151 S.E.2d 765. The case as previously reported in this court has no bearing on the issues here as it involved only a certified question of the Court of Appeals on appellate procedure. The case in the Court of Appeals was to review the grant in part and the denial in part of summary judgment on appeal to the superior court from an assessment of the revenue commissioner. The Court of Appeals held that a disputed issue existed presenting a jury question as to whether leased equipment or machinery was under the exclusive control of the lessor Grantham. The case involves, in the main, an arrangement of Grantham in which it leased, loaned, or contracted its equipment and machinery including certain services to motor common carriers in interstate commerce in which the written agreements granted exclusive possession, control and use of the motor vehicles involved when operated by or for such carrier. The affirmance by the Court of Appeals merely left the case pending in the court below, where it proceeded to trial. Both parties moved for directed verdict, and the lower court then discharged the jury and ordered as follows: (1) The third unnumbered paragraph of § 4a of the Sales and Use Tax Act, as amended (Ga.L.1955, pp. 389, 390; Code Ann. § 92-3448a) is not unconstitutional for any reason assigned; (2) The written agreements by and between Grantham and the motor common carriers are not leases taxable under the Sales and Use Tax Act (Code Ann. Ch. 92-34a, as amended), and the appeal from the assessment was sustained and set aside in a stated amount; (3) The sales (purchases) of certain tangible personal property by Grantham were taxable transactions, and the company had failed to pay these, thus in effect, authorizing the assessment by the revenue commissioner in a stated sum; (4) A lease of tangible personal property by the company was a taxable transaction, and the company having failed to pay the taxes thereon, the assessment was likewise sustained in a stated amount; (5) Certain sales (purchases) of tangible personal property were not taxable; yet the company had paid tax thereon; and (6) A judgment was rendered for the commissioner for a stated amount, including delinquency penalty and accrued interest for the taxable period.
The assessment involved, in the main, the question of whether or not the commissioner was correct in holding the written agreements were leases and requiring Grantham to collect and pay taxes thereon.
The appeal by Grantham is that the trial court erred in (1) Overruling its constitutional attack upon 'the third unnumbered paragraph of Section 4a' of the 1955 amendment to the Sales and Use Tax Act (Ga.L.1955, pp. 389, 390; Code Ann. § 92-3448a); and (2) Rendering judgment against it for sums claimed to be due in (a) the sale of tangible personal property originally purchased allegedly for its own use, and (b) the leasing of tangible personal property from others. It likewise enumerates error on the allowance in evidence of certain testimony; the refusal to allow certain testimony; the impeachment of the commissioner's witness by his counsel; and the refusal to grant in its entirety Grantham's motion for directed verdict.
The cross appeal by the Revenue Commissioner is from the holding by the trial judge that the written agreements between Grantham and the motor common carriers did not result in taxable transactions under the Sales and Use Tax Act.
Westmoreland & Patterson, Carl E. Westmoreland, Macon, Heard & Leverett, E. Freeman Leverett, Elberton, for appellants.
Arthur K. Bolton, Atty. Gen., Louis F. McDonald, William F. Harper, Asst. Attys. Gen. Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Atlanta, for appellees.
1, 2. Since it has been variously referred to in the briefs for both sides of this dispute, we think it necessary for us to dispose of the order of February 18, 1966, wherein a judgment in a stated amount was rendered in favor of the Revenue Commissioner (which has been paid and hence is out of this case.) Added to that judgment was the following: 'Further ordered, That in all other respects, the motion for summary judgment is hereby denied.' The court did not say upon what grounds its denial of summary judgment was based. If known what was the basis for that judgment it would be the law of the case as to such ground, but since that judgment fails to state the ground or grounds upon which it was based, we are unable to say what was the ground and hence will not hold that it is the law of the case on any questions presented in the present appeal for decision.
But since that judgment was affirmed in Undercofler v. Grantham Transfer Co., 114 Ga.App. 868, 871, 152 S.E.2d 900, hereinafter referred to as Grantham, in which only three of the five concurring judges held that there was an issue of fact, it might be said that such a statement in that opinion gives the grounds upon which this part of the judgment was based and it thereby became the law of the case to the effect that an issue of fact is made by this record which is, in substance, the same as that there considered. This cannot be true, as only five of the nine judges of that court concurred in the judgment of affirmance with two of these concurring in the judgment only. Four dissented. This renders the entire opinion not a ruling by the court but merely the view of only three judges, which is no ruling at all, and hence it cannot constitute the law of the case. See Southern Ry. Co. v. Parker, 194 Ga. 94, 102, 21 S.E.2d 94; Smith v. State, 196 Ga. 595, 602, 27 S.E.2d 369, and McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378, which hold that minority opinions are not binding, although the judgments were concurred in by a majority of the court. We therefore put those judgments aside as having no relevancy to the issues in this case.
3. With the ground thus cleared we proceed to a decision on the real merits of this case. The cross appeal presents the decisive question. If the six written instruments executed by Grantham and the six motor common carriers are leases, then the tax claim is valid. If these instruments are not leases of tangible personal property, the tax claims are invalid. As a famous Governor often said, 'Let's look at the record.'
(a) The instrument with Atlas Van Lines, Inc., is headed 'Motor Vehicle Lease Agreement.' It designates Grantham as lessor and Atlas as lessee. It recites that lessor leases to lessee a described Chevrolet truck. It contains this meaningful clause that lessee 'agrees to pay and lessor agrees to accept compensation specified in the applicable rules and regulations of Atlas as full and complete payment for the performance by lessor of all obligations herein imposed.' It is also agreed that the motor vehicle shall be in the exclusive direction and control of Atlas who shall assume all liability to shippers and the public for loss or damage to cargo. In addition this agreement also reads: 'For and in consideration of the covenants herein contained, and in further consideration of the rental paid or to be paid, the parties hereby agree' to the leasing of a described motor vehicle and to respective covenants of both parties. We hold that as a matter of law, this instrument is a lease of tangible personal property.
(b) The instrument executed by Grantham and Georgia Highway Express, inc., and/or B. C. Truck Lines, Inc., containing substantially the same provisions as the Atlas instrument contains the following significant clause, to wit: 'Lessee agrees to pay to the lessor, and lessee agrees to accept, as...
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