MASSEY JUNIOR COLLEGE v. Taggart , 140 Ga. App. 591 ( 1976 )

140 Ga. App. 591 (1976) 231 S.E.2d 540

MASSEY JUNIOR COLLEGE
v.
TAGGART.

53082.

Court of Appeals of Georgia.

Argued November 1, 1976. Decided November 30, 1976.

Sutherland, Asbill & Brennan, Charles T. Lester, Jr., for appellant.

McCord, Cooper & Voyles, James M. Kimbrough, for appellee.

STOLZ, Judge.

The appellant college appeals from a judgment in favor of the appellee in a suit by the appellee for commissions claimed to be owing. For several years, the appellee was a "student recruiter" for the appellant, receiving a commission based upon a percentage of the tuition paid by students residing in certain geographical districts assigned to her. On May 31, 1973, the appellee's contract of employment was terminated, and the appellee sought to recover her share of the tuitions later paid by students whom she had recruited. In a bench trial, the judge held in the appellee's favor, which judgment we must reverse.

1. One enumeration of error deals with the trial judge's allowing the appellee to call for purposes of cross examination under Code Ann. § 38-1801 (Ga. L. 1945, p. 227; 1947, p. 568), an ex-employee of the appellant. Code Ann. § 38-1801, however, does not allow the cross examination of ex-employees of a party. Mullis v. Chaika, 118 Ga. App. 11 (2) (162 SE2d 448) (1968). Therefore, the judgment must be reversed.

2. Although we are reversing for the reason expressed in Division 1 of this opinion, another enumeration of error deserves mention. One question of fact in the case dealt with the time at which the appellee was entitled to her commissions under her contract with the appellant. I. e., did entitlement commence at the date of the institution's acceptance of a student's application for admission or at the dates of a student's payments of tuition? During the presentation of the plaintiff-appellee's case in chief, the judge ruled on that issue in favor of the appellee. This was a premature determination by the trial judge and was erroneous.

Judgment reversed. Bell, C. J., and Clark, J., concur.