Waco Fire & Cas. Ins. Co. v. Plant
| Decision Date | 03 October 1979 |
| Docket Number | 57298,Nos. 57297,s. 57297 |
| Citation | 259 S.E.2d 95,150 Ga.App. 888 |
| Parties | WACO FIRE & CASUALTY INSURANCE COMPANY v. PLANT et al. WATKINS MOTOR LINES, INC. v. PLANT et al. |
| Court | Georgia Court of Appeals |
Smith, Currie & Hancock, W. Dennis Summers, Atlanta, Martin, Kilpatrick & Davidson, Marcus B. Calhoun, Jr., Columbus, for appellants.
Charles A. Gower, Columbus, John C. Stout, Jr., Atlanta, for appellees.
In accordance with several "operating contracts," appellees-L. B. plant and Plant Truck Service, Inc., contractors engaged in the business of transporting freight, leased trucks furnished with drivers to appellant-Watkins Motor Lines, Inc., a carrier engaged in the business of transporting commodities. After Watkins ceased to offer loads to appellees' truckers for shipping, appellees filed a complaint against appellant-Watkins and its sister corporation, appellant-Waco Fire & Casualty Insurance Company. Count 1 sought damages in the amount of $56,338.09 for Watkins' and Waco's alleged breach of contract "by failing to act in good faith." Counts 2 and 3 incorporated the allegations of Count 1 and sought $200,000 in exemplary damages for appellants' alleged malicious conspiracy "to injure Plant's business and cause the termination of his written lease contracts." Neither Counts 2 nor 3 sought general damages. This appeal is from a judgment entered on a jury verdict finding Watkins and Waco jointly liable to appellees for $56,338.09 in general damages and $75,000 in punitive damages. As we agree with appellants' contention that the verdict is not authorized under any legal theory advanced by appellees, we reverse the judgment with direction that judgment notwithstanding the verdict be entered in favor of appellants.
1. Count 1 of appellees' complaint, as framed by the pleadings and developed by the evidence, asserted that Watkins (aided by Waco) had breached several operating contracts between Watkins and appellees by refusing to assign loads to the trucks which appellees had made exclusively available for Watkins' use and that appellees suffered a total loss of $56,338.09 therefrom. The losses demanded in Count 1 were developed by the evidence at trial as representing both unnecessary expenditures (office rental, salaries, etc.) due to the cancellation of operating contracts without timely notice and anticipated net profits under the operating contracts. Appellants' position that there can be no recovery under the operating contracts forming the basis of appellees' claim is well taken.
A. The operating contracts upon which appellees' action is founded have identical language. Relevant provisions governing the contractual duties assumed by Watkins follows:
Although the contracts remained in force until cancelled by either party, Watkins was only obligated while the contract was in effect to ship commodities through Plant "in such amounts as (Watkins) may provide." There is no provision obligating Watkins to use any services of appellees during the contract period. The lease agreements do not provide that the equipment or the services of the drivers will be used at any time, or at all. See in this regard Morrow v. Southern Express Co., 101 Ga. 810, 28 S.E. 998; Sealtest So. Dairies Div. v. Evans, 103 Ga.App. 835(1), 120 S.E.2d 887; Wedgewood Carpet Mills, Inc. v. Color-Set, Inc., 149 Ga.App. 417, 254 S.E.2d 421. See generally 43 A.L.R.3d 1302(7c).
"In this respect, the purported agreement was unilateral and, as to any unperformed portion of the agreement, unenforceable for want of mutuality." Wedgewood Carpet Mills, supra, 149 Ga.App. p. 420, 254 S.E.2d p. 424. Accordingly, no recovery can be had for Watkins' failure to offer loads to truckers made available by appellees.
B. From the pleadings and the evidence, it appears that appellees were not seeking damages as to future performance. Rather, appellees were demanding recovery for losses allegedly sustained as a result of forced idleness, i. e., that period beginning with appellants' refusal to offer loads to appellees and ending with the formal cancellation of the purported contract (during which time appellees' trucks were allegedly exclusively committed and made available to Watkins). Appellees' contrary assertions notwithstanding, these damages are not compensable.
While appellees may be entitled to recover for that portion of the contract which had become executed by performance (trips undertaken pursuant to the agreement) or by such partial performance as would bind appellees under the contract (see Sealtest So. Dairies Div., supra, Division 2), appellees here are seeking damages for unexecuted and unperformed portions of the agreement.
Watkins' acceptance of past services and the corresponding contractual obligations arising therefrom do not supply the necessary consideration so as to make the operating contracts valid and enforceable as to unperformed portions. Wedgewood Carpet Mills, supra; Morrow, supra. Appellees' actions in making trucks and drivers exclusively available to Watkins were not intended by the parties to be such performance as would make the contract mutual and binding as to unperformed portions. See Gunter Bros. Inc. v. Cooper Tire etc. Co., 87 Ga.App. 626, 74 S.E.2d 744. Nor did these actions cure the indefiniteness as to the quantity feature of the operating contracts. Pierson v. General Plywood Corp., 76 Ga.App. 853(1), 47 S.E.2d 605. Simply stated, Watkins is not legally obligated under a contract theory for unperformed services which were neither ordered nor accepted. Durkee Famous Foods, Inc. v. Selig Co., 48 Ga.App. 711(1), 172 S.E. 824. As to tort liability for breach of contract, see generally Murphy Oil Co. v. Weir, 145 Ga.App. 631, 244 S.E.2d 146; Ga. Kaolin Co. v. Walker, 54 Ga.App. 742, 189 S.E. 88.
2. The dispute between the litigants was apparently precipitated by certain affidavits submitted by appellees to the IRS. These affidavits tended to show that the drivers furnished with appellees' trucks occupied the status of independent contractors and not of employees relative to appellees. Watkins, concerned over its potential liability to IRS for social security taxes, considered these affidavits to be in contravention of the terms of the operating contracts.
Count 2 of the complaint in conjunction with Count 3 (which delineated the conclusory allegations in Count 2) sounded in tort and asserted that Waco, which only insured contractors hauling for Watkins, had interfered with the operating contracts by wrongfully cancelling appellees' insurance under the pretense that appellees had violated their contract with Watkins. It was also alleged that Waco's action was in furtherance of a conspiracy between Watkins and Waco to assert economic pressure on appellees in order to force appellees to withdraw the affidavits to IRS.
A. On appeal, appellees assert that Counts 2 and 3 represent a claim against appellants for injuries to appellees' business attributable to tortious interference with the insurance contract issued by Waco to Plant. We note that Counts 2 and 3, as framed by the pleadings, sought only exemplary damages and did not demand actual damages flowing from a breach of the insurance contract. At trial, appellants presented no competent evidence which would support a verdict for independent losses arising from any alleged conspiracy to interfere with the insurance contract. As the...
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