*1 this evidence reject course, and find for the plaintiff. Of also found that in company had acted bad faith in discontinuing payments. However, no clear means that this finding was based on a determination the company’s defense at trial was plaintiff unreasonable. The introduced evidence showing the company initially an gave frivolous altogether reason discontinuing payments and that pre-existing condition defense was not until discovered later. Given the court’s charge issue, on the which is quoted majority opinion, the jury may well have based its of a finding bad faith refusal to on pay However, evidence. as noted previously, the Supreme Court has ruled that the existence of bad faith in refusing pay a claim is to be judged solely by the or strength weakness of the presented defense at trial and preliminary proofs.
In summary, believe that the evidence introduced at trial established a reasonable defense to the merits of the plaintiffs claim. Therefore, would reverse the award of the bad faith penalty and attorney fees in accordance with the standard set forth the Supreme Court response to our certified question this case.
I am authorized to state that Judge Birdsong joins in this dissent.
57297. WACO FIRE & CASUALTY INSURANCE
COMPANY v. PLANT et al. LINES, WATKINS MOTOR INC. v. PLANT al.
et Shulman, Judge.
In accordance with several contracts,” "operating appellees-L. B. Plant and Plant Inc., Truck contractors engaged the business of transporting freight, leased trucks furnished with drivers appellant-Watkins Motor Inc., a carrier engaged the business of transporting commodities. After Watkins ceased to offer loads appellees’ truckers for shipping, appellees filed a complaint against appellant-Watkins
and its sister corporation, appellant-Waco Fire & Casualty Insurance Count 1 Company. sought damages $56,338.09 the amount of for Watkins’ and Waco’s breach of contract act in faith.” "by failing good and 3 incorporated the Count 1 allegations of *2 $200,000 and sought exemplary appellants’ alleged malicious "to Plant’s and business cause the termination of his written lease contracts.” Neither 3 nor sought general This damages. appeal is from a judgment entered on a verdict Watkins and finding Waco liable jointly $56,338.09 in general $75,000 and in punitive As damages. we contention that the verdict is not authorized under any legal theory advanced by appellees, we reverse judgment with direction that judgment notwithstanding the verdict be entered in favor of appellants. of appellees’ complaint, as framed by
pleadings developed by evidence, asserted that (aided Waco) Watkins 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 $56,338.09 total loss of therefrom. The losses demanded in Count were developed by the evidence at trial as representing both unnecessary expenditures (office etc.) rental, salaries, due to the cancellation of operating contracts without timely notice and anticipated profits net under the operating contracts. Appellants’ position that there can be no recovery under the operating forming basis of appellees’ claim is well taken.
A. The operating contracts upon which appellees’ action is founded have identical language. Relevant provisions governing contractual duties assumed by Watkins follows: "1. Contractor B. Plant or [L. Plant Truck hereby agrees, Inc.] upon request of Carrier [Watkins Motor Inc.], to use the equipment [listed]... to furnish all labor to perform all the work necessary the transportation commodities, such including loading unloading, and in such amounts as Carrier may provide. 2. Carrier agrees to pay Contractor in accordance with the attached rate and service the full and proper performance trips schedules for agreement undertaken to this Contractor.” pursuant the contracts remained in force until Although cancelled either party, only Watkins was obligated while the contract was in effect to ship commodities "in such through may Plant amounts as [Watkins] provide.” There no provision obligating Watkins to use any appellees during period. services of the contract The lease do agreements provide that the or the equipment time, services of the drivers be used at any will or at all. regard See this Morrow v. Southern Express 998); Evans, Ga. 810 Sealtest So. Dairies Div. 887); Mills, Wedgewood Carpet Color-Set, Inc., Inc. v. (7c).
See 43 ALR3d generally "In respect, purported agreement was and, unperformed unilateral as to any portion of the agreement, unenforceable for want of mutuality.” Wedgewood Carpet supra, p. 420. Accordingly, no *3 recovery can be had Watkins’ failure to offer loads for
truckers appellees. made available by
B. evidence, From the and pleadings appears that appellees were not as to seeking damages future performance. Rather, were appellees demanding recovery for losses as a allegedly idleness, sustained result of forced i.e., that period beginning refusal to offer loads to appellees the formal ending cancellation of the purported contract which time (during appellees’ trucks allegedly exclusively were committed and made Watkins). available contrary Appellees’ assertions notwithstanding, compensable. these are not
While entitled appellees may be to recover for that portion of the contract had become executed by performance (trips undertaken pursuant to the agreement) byor such partial performance as would bind (see appellees Div., under the contract Sealtest So. Dairies supra, 2), Division here seeking are unexecuted unperformed portions agreement. of the acceptance
Watkins’ of past services and the corresponding obligations arising therefrom do not supply necessary consideration so to make the operating valid and enforceable as to Carpet Wedgewood unperformed portions. supra; Morrow, actions in trucks and supra. Appellees’ making drivers exclusively available to Watkins were not intended parties performance to be such as would make the contract unperformed mutual and as to binding Cooper See Gunter Bros. Inc. Tire & Rubber portions. Co., 87 Ga. (74 744). Nor did these actions App. cure the indefiniteness as to the feature of the quantity contracts. Pierson v. Plywood Corp., General (1) (47 605). stated, Ga. App. Simply Watkins is legally under a contract obligated theory unperformed services which were neither ordered nor Foods, accepted. Durkee Famous Inc. v. Selig 824). App. SE As to tort for breach of liability Weir, contract, see generally Murphy Oil Co. v. 145 Ga. Walker, SE2d 146); Ga. Kaolin Co. v. 2. The dispute between the litigants apparently was precipitated certain affidavits submitted by appellees to the IRS. These affidavits tended to show drivers furnished with appellees’ trucks occupied the status of independent contractors not of employees appellees. Watkins, relative concerned over its potential liability to IRS taxes, for social security considered these affidavits to be contravention of the terms of the operating contracts. of the complaint in conjunction with Count 3
(which 2) delineated the conclusory allegations in Count sounded in tort and asserted Waco, which only insured contractors hauling Watkins, had interfered with the operating wrongfully cancelling appellees’, insurance under the pretense that appellees had violated their contract with Watkins. It was also *4 alleged that Waco’s action was furtherance of a conspiracy between Watkins and Waco to assert economic pressure on appellees in order to force to withdraw the affidavits to IRS.
A. On appeal, appellees assert that Counts and 3 represent a claim against appellants for injuries appellees’ business attributable to tortious interference with the insurance contract issued by Waco to Plant. We 3, by pleadings, as framed that Counts note did not demand damages only exemplary sought the insurance from a breach of flowing damages actual trial, competent no appellants presented At contract. independent a verdict for support would evidence interfere conspiracy any alleged arising losses as the pleadings, contract. As the insurance legal arguments the evidence and developed raise a claim for court, did not adequately trial to interfere with alleged conspiracy from an arising contract, not be theory may urged insurance and 3. a basis for the claim contained forming EMC, 150 Ga. County v. Douglas Sowell that Counts and were B. The evidence shows alleged exemplary seeking by interfering Plant’s business so, forth in Count 1. This contracts set operating fare better'than Count 1. these counts can no "In to recover for unlawful [appellees] order relations with interference with [their] contract [Watkins], there must have been an enforceable Carpet parties.” Wedgewood between the existing 421. As we have held the supra, p. unenforceable, recovery
be it follows that there can be no contracts, and the any interference with these to direct the verdict as to refusing trial court erred Counts 2 and 3. Id. for a
3. The court erred in the motion denying denying directed verdict made the defendants and ruling the motion for n.o.v. Since cases, final these we need not disposition constitutes a consider advanced as reasons grounds appellants other for reversal. that a judgment reversed with direction
Judgment he entered notwithstanding the verdict favor of J., Banke, Quillian, P. appellants. Birdsong J., Underwood, JJ., Deen, J., P. McMurray, concur. C. JJ., Smith and dissent. Carley, Argued February 13, 7, 1979 Decided June Rehearing July 26, denied
Smith, Hancock, Currie & Summers, W. Dennis Martin, Kilpatrick Davidson, & Calhoun, Jr., Marcus B. for appellants. Gower, Stout,
Charles A. Jr., John C. for appel- lees. Presiding Judge, dissenting.
McMurray, L. B. Plant and Plant Truck Inc. were engaged the business of trucks furnished "leasing Inc., drivers to Watkins Motor the carrier However, defendant.” insurance had been on purchased all of these trucks involved in the leases with Watkins defendant, from the other Waco Fire Casualty- & Hence, Insurance Company. there were sets two of contracts involved here: the contracts the involving leases of the trucks to Watkins and the contracts the involving insurance on these upon trucks. Based a dispute by plaintiffs between the and Watkins as to the activities of (insurance the plaintiffs all of the contracts as well as the contracts) leasing breached, were either nullified or rendered void. Whereupon sued plaintiffs Watkins and Waco, inasmuch as "both alleged, breached its contracts with Plant by to act in failing good faith.” Based upon actions of defendants, plaintiffs have sued for damages by reason of the acts of the defendants resulting from the breach of contracts, interference with relations, malicious conspiracy to one’s injure business, and in for exemplary resulting from the malicious conspiracy of the defendants "to Plant’s business.”
A trial was held and a verdict was returned by the jury finding the defendants "guilty,” awarding plaintiffs general damages for certain losses and punitive damages $75,000. amount Motions for judgment notwithstanding verdict or in the alternative motion for new trial or reduction of damages were filed and denied. The defendants appeal.
IWhile agree the leasing contracts were in all probability unilateral and unenforceable for want of mutuality, nevertheless do with the majority opinion judgment this case directing that the court
below enter
favor of the defendants.
the fact that
there are two sets
attention to
call
lease of
here, the so-called contracts of
involved
contracts
insuring
trucks and the insurance
the various
only
The
as written
deals
opinion
vehicles.
unilateral
of lease
*6
unenforceable,
the
were not entitled
plaintiffs
but holding
plaintiffs’
unlawful
interference with
recover
contracts,
in
all of the
insurance
cancelling
business
enforceable, and
The insurance contracts were
otherwise.
they
an issue of fact as to whether or not
were
there was
evidence of
plaintiffs
cancelled. The
have shown
properly
interfere
business
plaintiffs’
an
in which these contracts were cancelled.
as to the method
(1),
v.
&c.
112 Ga.
City Plumbing
App.
See Dale
(124
(146
349);
DuPree,
Luke v.
It is my therefore that a new trial should be opinion ordered. Clearly, jury upon the considered the case based the violation the of the unilateral contracts as well as instructions insurance contracts. Erroneous valid mutual upon also based resulted. The the also losses as to business computations damages arising contracts which the unilateral connected out with carry not required Watkins was defendant activities. trucking to the reference dissent. respectfully therefore Deén, that Chief Judge am authorized to state in this dissent. Judge Carley join Smith and Judge v. FOSTER et al. 57177. PACE Judge. Smith, below, contends Pace, Appellant plaintiff to deliver jury, failing erred in charging trial court for a his motion overruling requested charges, certain of his grounds verdict, denying general directed erroneously the court trial. Because motion for new we reverse. appearance, of sudden charged on doctrine *7 5, 1975, appellee March morning At 7:30 on the of automobile, mother, by Harold C. Foster his transported in Marietta. After School Elementary to Blackwell off, the school proceeded along his mother Foster dropping Road, onto to the exit Canton driveway intersecting time, At that right. appellant, which he took a eventually vest, began a school dressed a reflective crossing guard toward the walking along edge driveway of the school the end of stop intersection. Foster at a near stopped sign the left and, coming his of traffic driveway view fence, gradually Canton Road blocked a he along intersection, on a few feet to the Canton Road proceeded his back to the left. focusing all the while attention onto looking, appellant briskly Without had walked and, just right Canton Road himself stationing In intersection, to direct traffic. prepared meantime, had from the pulled slowly away Foster and, left, collided with looking intersection still to his that, time he let Foster admitted from the when appellant. stop sign brake after to a at the coming stop his foot off the until ahead point impact, straight he never looked