Omni Exp., Inc. v. Cleveland Exp., Inc.
| Decision Date | 25 February 1986 |
| Docket Number | Nos. 71351,71352,s. 71351 |
| Citation | 178 Ga.App. 42,341 S.E.2d 911 |
| Parties | OMNI EXPRESS, INC. v. CLEVELAND EXPRESS, INC. CLEVELAND EXPRESS, INC. v. OMNI EXPRESS, INC. et al. |
| Court | Georgia Court of Appeals |
Samuel H. Kirbo, Jonesboro, for appellant.
Arthur B. Seymour, Atlanta, for appellee.
The evidence at trial showed that Cleveland Express, Inc. ("Cleveland"), a motor carrier, entered into an interlining agreement (an arrangement by which a common carrier entrusted with cargo intended for a locality not within its authorized service area delivers the cargo to a carrier authorized to serve that area, with fees to be split according to tariffs established by the Interstate Commerce Commission) with Omni Express, Inc. ("Omni"), another motor carrier. Then, at Omni's direction, Cleveland began delivering freight to another terminal, operated by a different corporation. The funds paid to the other corporation by Cleveland and by customers were deposited in an account owned by Omni. When payment was not forthcoming to Cleveland on amounts earned through the interlining agreement, this suit was brought, resulting in a judgment for Cleveland for the amount claimed and interest thereon.
1. The first enumeration of error in Cleveland's cross-appeal concerns the trial court's denial of Cleveland's motion to dismiss the main appeal. Since there is no transcript of the hearing which was held in the trial court, this court must assume that the trial court's ruling was correct. Wetherington v. Koepenick & Horne, Inc., 153 Ga.App. 302(2), 265 S.E.2d 107 (1980).
2. Cleveland, in its pleadings, demanded expenses of litigation on the ground that Omni acted in bad faith in the underlying transaction and had been stubbornly litigious. The second enumeration of error in the cross-appeal is directed to the trial court's denial of those expenses.
Although the question of a party's entitlement to expenses of litigation is generally a question for the jury (Brannon Enterprises v. Deaton, 159 Ga.App. 685, 285 S.E.2d 58 (1981)), since the parties to this case consented to the submission of the case to the jury on a special verdict form, Cleveland waived the submission of this issue to the jury by failing to ask that it be included. OCGA § 9-11-49(a); Rewis v. Browning, 153 Ga.App. 352(6), 265 S.E.2d 316 (1980).
Reviewing the evidence before the trial court, we find support for the trial court's ruling against Cleveland on this issue: there was a bona fide controversy concerning which of two corporations was liable to Cleveland; and evidence that the owner of Omni set up a new corporation to buy an existing motor carrier and then sought to have that corporation interline with Cleveland supported Omni's claim of good faith in the underlying transaction. See OCGA § 13-6-11.
3. In the main...
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