Winston Corp. v. Park Elec. Co., 48611

• Decision Date: 04 December 1973
• Docket Number: No. 2,No. 48611,48611,2
• Citation: 203 S.E.2d 753,130 Ga.App. 508
• Parties: WINSTON CORPORATION v. PARK ELECTRIC COMPANY
• Court: Georgia Court of Appeals

Page 753

203 S.E.2d 753

130 Ga.App. 508

WINSTON CORPORATION v. PARK ELECTRIC COMPANY.

No. 48611.

Court of Appeals of Georgia, Division No. 2.

Dec. 4, 1973.

Rehearing Denied Dec. 19, 1973.

Wall, Campbell & Fuller, Hilton M. Fuller, Jr., Atlanta, for appellant.

Lynwood A. Maddox, Atlanta, Howard, Howard & Hall, William V. Hall, Jr., Decatur, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

'(J)udges are always presumed to know judicially what the law is,' said this court in Conney v. Atlantic Greyhound Corp., 81 Ga.App. 324(1), 58 S.E.2d 559. To this aphorism former Chief Judge Felton appropriately appended a key word 'theoretically' in Sparks Specialty Co. v. Moss, 110 Ga.App. 585, 586, 139 S.E.2d 345. ¹ Proceeding on this presumption counsel for both parties in this appeal have lightened our labors by eschewing spurious scholarship in refraining from citing numerous legal authorities. In fact appellant's brief wisely contained no citations because it was recognized that the correctness of the trial court's judgment could be resolved only by a careful reading of the transcript. Our comment is not intended to infer any lack of labor by these lawyers. The record which shows a total of twenty-two items being omitted for appeal purposes and the well written briefs and fine oral arguments by both counsel confirm their clients receiving dedicated representation. In short, both parties realized the principal legal question was previously decided in the first appeal reported as Winston Corporation v. Park Electric Co., 126 Ga.App. 489, 191 S.E.2d 340.

Following the example set by these advocates we will limit the length of this opinion by pointing out that there is a single principle of appellate jurisprudence which is determinative of this appeal. That rule was postulated in the early case of Wiley, Parish & Co. v. Kelsey, 13 Ga. 223, thusly: 'Where, by an agreement of the parties, a cause is submitted to the Court for its judgment and decision upon the facts, as well as the law, this Court will indulge the same presumption in regard to the facts, on a motion for new trial, as if the cause had been submitted to a Jury, and will not disturb the judgment when there is any evidence in the record to sustain it, or when there is a conflict of evidence; but if there is no evidence in the record to support the judgment, a new trial will be granted.'

Park Electric Co. sued Winston Corporation for $33,786.82 for labor and material allegedly furnished in the construction of a nursing home in Atlanta. Winston counterclaimed for $70,000 for breach of contract. The trial transcript shows plaintiff's claim is for overtime based upon a letter agreement dated May 8, 1969 (T. 152) supported by invoices which had been submitted monthly without any complaint from defendant. Each invoice stated the total number of hours computed at $3.25 per hour and at $9.75 per hour. The latter item always carried the letters SP which referred to 'supervisory personnel.' The total shown by these invoices was $32,512.59. That figure was also acknowledged by plaintiff to be the exact amount of the claim in response to a question from the court. (T. 135). Thus, the transcript meets the 'any evidence' rule adverse to the contentions of appellant dealing with the manner of the computation of the overtime and supports the trial judge's finding of fact. Such determination is not affected by the cautionary words used in the judgment that this was 'as best the Court can determine.' (R. 13).

In support of the counterclaim the vice president of Winston Corporation specifically itemized eight items totaling $56,690. Alth...