Luke v. McGuire Insurance Agency of Georgia, Inc.

212 S.E.2d 889, 133 Ga. App. 948, 1975 Ga. App. LEXIS 2344
CourtCourt of Appeals of Georgia
DecidedFebruary 13, 1975
Docket49928
StatusPublished
Cited by2 cases

This text of 212 S.E.2d 889 (Luke v. McGuire Insurance Agency of Georgia, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Luke v. McGuire Insurance Agency of Georgia, Inc., 212 S.E.2d 889, 133 Ga. App. 948, 1975 Ga. App. LEXIS 2344 (Ga. Ct. App. 1975).

Opinion

Marshall, Judge.

This is an appeal from a verdict and judgment in the State Court of DeKalb County, in which appellant sought commissions from appellee, appellant’s former employer.

Appellant commenced employment for appellee on July 7, 1970. A memorandum of agreement between the parties was prepared at that time setting forth appellant’s salary of $15,000 plus 2% commission to be paid after appellant’s production exceeded $200,000. The memorandum contained the following provision: "This is meant to be a basic summary of our relationship and there is certainly nothing that we are locked into in a hard and fast fashion.”

In August, 1970, a sales meeting was held at the home office of appellee, which meeting was attended by appellant. All of appellee’s employees and salesmen were notified at this meeting of a reorganization in appellee’s company that would make it necessary to terminate commissions and establish a new method of compensation for its employees. In October, 1970, the company treasurer of appellee came to the Atlanta office of appellee [949]*949where appellant was employed and explained the terms of the new incentive compensation plan, which consisted of a salary plus bonus of 5% of the net profit of the Atlanta office. The new plan, also, provided that salaries would be increased periodically in lieu of commissions.

It was appellant’s contention that he did not agree with the new plan of compensation. Appellant did continue employment with appellee at the time of the installation of the new plan. It was agreed by the parties at the trial that in October, 1970, appellant had not generated commissions near the $200,000 sales volume that would have entitled the plaintiff to commissions at that time under the original memorandum agreement; therefore, no commissions were owed by appellee to appellant at that time.

In accordance with the new plan of compensation, the appellee raised appellant’s salary on April 1, 1971, from $15,000 per year to $18,000 per year. At the end of 1971 a 5% bonus was paid to appellant in the amount of $900 in accordance with the new plan of compensation. In January, 1972, appellant’s automobile allowance was increased from $200 to $300 per month, and on January 1, 1972, appellant’s salary was increased to $20,800 per year.

Appellee opened a new office in Orlando, Florida, and appellant was transferred there to be manager of that office in December, 1972. In January, 1973, appellant’s salary was increased to $26,000. All salary increases, including the bonus and increase in car allowance were made by appellee to appellant pursuant to the new plan of compensation adopted by appellee in October, 1970.

Appellant, at the trial, contended that he was entitled to a commission of 2% in accordance with the memorandum agreement dated July 7, 1970, whereas the appellee contends that this original method of compensation was terminated in October, 1970. Appellant further contended that he did not agree to the change in compensation, although evidence at the trial was to the effect that he accepted the regular salary increases over the two and one-half year period, including the bonus and an increase in the car allowance. Appellee contended at the trial that these acceptances of increased [950]*950compensation and benefits indicated a ratification of the new plan of compensation.

In November, 1972, and again in December, 1972, appellee loaned the appellant the aggregate sum of $9,500 to enable him to purchase a home in the State of Florida, in accordance with his transfer there.

At the time it was agreed by the appellant that he would repay appellee these loans upon the sale of appellant’s house in Atlanta. At the time of the trial of the case, appellee had not been repaid this loan, although appellant’s house had been sold subsequent to his move to Florida.

Appellant filed suit against appellee seeking payment of commissions, totaling $24,406.60, alleged to have been owed to appellant by appellee while in his employment. Suit was not filed until after appellant had left appellee’s employment. Appellee filed an answer denying that commissions were owed to appellant and also filed a counterclaim seeking the amount of $10,000, consisting of the two personal loans made to appellant aggregating $9,500 plus advances, totaling $500, that had been made to appellant.

At the trial appellee contended that appellant had not notified appellee that he relied upon the exact terms of the agreement of July 7, 1970; and that appellant’s acceptance of the increased benefits shows that he could not have relied upon the exact terms of the original agreement. Appellee further contended that all of the salary increases received by appellant, including bonus and increase in car allowance, were changes from the original agreement upon which appellant bases his case.

After a trial, the jury returned a verdict in favor of appellee in the amount of $9,612.15. Judgment was entered in favor of appellee against appellant in this amount, and appellant appeals from the overruling of his motion for a new trial.

The basic issue in this case was: Was the original agreement in effect as far as commissions to appellant were concerned all through the term of appellant’s employment by appellee, or did appellant by words or actions agree to the modification of the compensation arrangement in 1970 to the extent that commissions were [951]*951eliminated from the method of compensation?

Appellant enumerated nine errors contended to have been committed by the trial court. Held:

1. Appellant, in his first enumeration of error, contended that the trial court erred in allowing appellee to cross examine appellant on matters immaterial and irrelevant to the case, particularly to appellant soliciting away several customers of the appellee after appellant’s employment had terminated. The cross examination referred to by appellant in his brief refers to material contained in pages 51 through 53 in the transcript. The cross examination specifically referred to does not contain any objections by appellant concerning the line of questioning as being irrelevant nor is there any objection interposed whatsoever. It is fundamental that one is limited in his appeal to grounds of objection which he properly presented to the trial court, and he cannot make them for the first time on appeal. Federal Ins. Co. v. Oakwood Steel Co., 126 Ga. App. 479 (191 SE2d 298); H. W. Ivey Const. Co. v. Transamerica Ins. Co., 119 Ga. App. 794 (168 SE2d 855); Abrams v. State, 223 Ga. 216 (9) (154 SE2d 443). There is no merit in this enumeration of error.

2. In his second enumeration of error appellant contends: "The trial court erred in denying appellant a full latitude of cross-examination in that he was refused the right to cross-examine appellee’s witnesses on a matter of mutual benefit that appellee had been allowed to cross-examine appellant about.” Appellant cited portions of the record on pages 61 through 64 and also on page 36, and again a portion on pages 124-125 of the record. A careful examination of the record reveals no such material in the portion of the record on pages 61 through 64, nor on page 36. However, on pages 124-125 of the record appellant sought to cross examine appellee’s witness concerning monies which appellee obtained as its portion of the commissions generated by appellant.

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Cite This Page — Counsel Stack

Bluebook (online)
212 S.E.2d 889, 133 Ga. App. 948, 1975 Ga. App. LEXIS 2344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luke-v-mcguire-insurance-agency-of-georgia-inc-gactapp-1975.