Hearn v. Old Dominion Freight Lines, 68640

• Decision Date: 20 November 1984
• Docket Number: No. 68640,68640
• Parties: HEARN v. OLD DOMINION FREIGHT LINES.
• Court: Georgia Court of Appeals

Page 517

324 S.E.2d 517

172 Ga.App. 658

HEARN v. OLD DOMINION FREIGHT LINES.

No. 68640.

Court of Appeals of Georgia.

Nov. 20, 1984.

Robert C. Shearouse, Savannah, for appellant.

C. James McCallar, Jr., H. Joseph Chandler, Jr., Savannah, for appellee.

SOGNIER, Judge.

Old Dominion Freight Lines brought suit on contract against R.D. Hearn, Jr. for sums allegedly due for cargo losses caused by theft. Hearn answered and counterclaimed for lost profits. The trial court granted summary judgment in favor of Old Dominion on both the main action and Hearn's counterclaim. Hearn appeals.

1. Appellant contends the trial court erred by holding him liable for the cargo losses under the contract. Appellant argues a conflict exists between two provisions of the contract and in view of the ambiguity in the contract, the trial court erroneously granted summary judgment to appellee. One provision states that "[appellee] will furnish rating, insurance and will handle all collections." The allegedly conflicting provision states that "[appellant] will be personally liable for loss or damage to all shipments moving under his direction other than those covered by public liability insurance." It is uncontroverted that the cargo losses here, being the result of theft, are not covered by public liability insurance.

We agree with the trial court that the contract is not ambiguous. The existence or nonexistence of an ambiguity in a contract is a question of law for the court. Cassville-White Assoc. v. Bartow Assoc., 150 Ga.App. 561, 564(3)(a), 258 S.E.2d 175 (1979). Where the court determines that a contract is not ambiguous or that any ambiguity can be resolved within the four corners of the instrument by utilizing the applicable rules of construction, there is no question of fact for the jury. See Indian Trail Village v. Smith, 152 Ga.App. 301, 302-303, 262 S.E.2d 581 (1979). Appellant argues that because some of the insurance appellee purchased pursuant to the contract could have been used to cover part of the cargo losses in question, he is therefore absolved under the contract from all liability for those losses. However, there are no terms in the entire contract executed by appellant which make an exception to the liability appellant assumed for cargo loss or which require appellee to apply its insurance to the cargo losses here. " 'The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.' [Cits.]" Indian Trail Village, supra at 303, 262 S.E.2d 581. Furthermore, under another rule of contract construction, a limited or specific provision will prevail over one that is more broadly inclusive. Griffin v. Barrett, 155 Ga.App. 509, 510, 271 S.E.2d 647 (1980). Thus the contract language specifically making appellant liable for all cargo loss...