Opinion
34893, 34894.
DECIDED MARCH 11, 1954. REHEARING DENIED APRIL 2, 1954.
Breach of contract. Before Judge Shaw. Fulton Superior Court. May 8, 1953.
Wm. A. Thomas, for plaintiff in error.
Arnold Gambrell, contra.
1. The allegations of the amendments to the petition, stricken on special demurrers, were immaterial to the issues in the case as made by the overruling of the general demurrer to the petition, and the court did not err in sustaining the special demurrers and striking the allegations.
2-4. There being no brief of evidence attached to the amended motion for new trial or otherwise made a part of the record, the court did not err in dismissing the motion for new trial based on the general grounds only, and no harm is shown in the court's failure to certify exceptions pendente lite to the disallowance of an amendment to the motion for new trial and in the overruling of demurrers to the defendant's answer.
DECIDED MARCH 11, 1954 — REHEARING DENIED APRIL 2, 1954.
rufus W. Daniel sued Atlanta Newspapers, Inc., for an alleged breach of an employment contract. The plaintiff claims that he is due severance pay under the following provision of the contract: "Section number 14, Severance Pay: When an employee is discharged for any reason, unless for dishonesty, repeated drunkenness after warning, gross misconduct, gross neglect of duty or gross insubordination, he shall be paid, in addition to any sum otherwise due him, one normal week's pay at straight-time rates for each six (6) months of continuous service or major fraction thereof with The Constitution, for a period of five years, and thereafter one normal week's pay at straight-time rates for each year's continuous employment, or major fraction thereof, with The Constitution, up to a maximum of fifteen (15) weeks' normal pay at straight-time rates."
The plaintiff alleged that he was not guilty of any conduct enumerated in section 14 which would defeat his right to severance pay. By amendment he alleged: 1. That section 16 of the contract provided in part that two weeks' notice should be given to employees except in cases of discharge for dishonesty, repeated drunkenness after warning, gross neglect of duty, or gross insubordination; that, upon receipt of notice of discharge, an employee might notify the grievance committee of the association so that the committee might confer with the publisher in the case; that employees being discharged should be given, upon request, a written statement by the employer, stating the reason for the dismissal. 2. That, in pursuance to section 16 of the contract, the plaintiff requested a reason for his discharge, and in reply to the request received the following letter from the defendant: "This is your notice of dismissal effective at the close of the week ending Nov. 12, 1950. This dismissal is in accordance with the terms of my previous warning to you that any future failure to show up for work due to drinking, and failure to put in your regular day's work without previous excuse, would result in severing connections between The Constitution and you. Since you missed work Wednesday, Nov. 9, 1950, due to drinking, this dismissal is necessary. Your two weeks' pay drawn over vacation time (for which two weeks' vacation you have been paid twice) will be in lieu of two weeks' notice." 3. That the reasons for the dismissal "did not contemplate the forfeiting of his severance pay, contemplated by section 14 of said contract and working agreement with defendant, for the reason, among others, that said Lee Rogers, then managing editor of defendant, accorded and gave credit to petitioner for two weeks' pay, which fact and event would not have been contemplated or accorded if the written statement of discharge, under section 16 of said contract, had embraced `dishonesty, repeated drunkenness after warning, gross neglect of duty or gross insubordination.'" 4. That, pursuant to section 16 of the contract, the plaintiff referred his case to the grievance committee; and that the committee upon reviewing his case wrote the defendant a letter setting out the committee's finding that the plaintiff had not been legally discharged. That letter read in part as follows: "The grievance committee unanimously took the view that, drunkenness having been given in Mr. Rogers' letter of dismissal as the reason for dismissal, the contract was violated as regards severance pay; that Mr. Daniel is entitled to severance pay. It believes that Mr. Rogers is in error in interpreting the phrase in Sec. 14 of the contract, `repeated drunkenness after warning' to mean a single case of drunkenness after warning. The committee believes `repeated drunkenness' means more than one case of drinking." 5. That notwithstanding and disregarding this vote of the entire membership of the grievance committee, the defendant refused to pay the plaintiff severance pay. 6. That, in answer to the committee's letter, the defendant wrote the committee a letter adhering to its original stand on the matter; that such letter contained the following paragraph: "If the union still wishes to press the matter, I suggest we put the joint standing committee to work. Please let me know if such a meeting is desirable." 7. That the paragraph in the defendant's letter referring to the joint standing committee constituted an intimidation of the committee, who were employees of the defendant, and constituted a veiled threat to the security and positions of each of the members of the committee and amounted to a direction to drop the matter right where it was. 8. That, "on information and belief, petitioner alleges that, inasmuch as defendant did not have to control the two members of the standing committee, contemplated by his contract of employment, who represented defendant or "The Management' the defendant in ways unknown to petitioner did intimidate and prevent the standing committee from ever rendering any decision in said case as a result of defendant's fraudulent intimidation, and other actings and doings, which amounted to a disallowance of and a non-payment of the severance pay which is due your petitioner."
The court, on demurrer, struck paragraphs 3 through 8 of the amendment, and such ruling is made the subject of exceptions pendente lite. The court overruled a general demurrer to the petition as it then stood amended. By amendment the plaintiff attached a copy of the employment contract. Sections 7 and 16 of the contract provided that any dispute arising as to the interpretation of the contract should be submitted to a joint standing committee composed of two representatives of the publisher and two representatives of the union, and that the decision of that committee would be final and binding on all parties. The plaintiff then filed an amendment, alleging that the joint standing committee was prevented from considering his case because of a petition which was circulated by the head of the defendant's copy desk, at the instance of the defendant; that the petition was circulated among the union members working for the defendant and recommended that the membership vote to not urge the plaintiff's rights or grievances against the defendant. A demurrer to this amendment was sustained and the amendment was stricken. The plaintiff excepted to the ruling by exceptions pendente lite. On the trial of the case, the jury returned a verdict for the defendant. The plaintiff's motion for new trial was dismissed, and he excepts to that judgment and on his exceptions pendente lite.
1. The court did not err in sustaining the demurrers to and in striking paragraphs 3 through 8 of the first amendment and in striking the last amendment. The only logical and reasonable interpretation that can be given to the court's overruling of the general demurrer, in view of its striking the paragraphs of the amendment, is that the petition alleged a good cause of action as to whether or not the plaintiff was properly discharged without severance pay under the employment contract. This ruling restricted the issues to those of whether the plaintiff was guilty of drunkenness, and whether the phrase, "repeated drunkenness after warning," meant one or more than one case of drunkenness after warning, if the plaintiff was found guilty of drunkenness. With the issues so restricted, the allegations concerning the grievance committee and the joint standing committee became immaterial, and the activities of the parties relative to these committees were of no consequence in the case. For this reason the court did not err in striking on demurrer paragraphs 4 through 8 of the first amendment and in striking the last amendment. These rulings were actually favorable to the plaintiff because they relieved him of showing that the dispute as to the meaning of the phrase, "repeated drunkenness after warning," was, as provided by the contract, submitted to the joint standing committee for its interpretation, or that he was, through no fault of his own, prevented from obtaining a decision from that committee, and enabled him to make out his case without showing that he had exhausted his contractual remedies. As to paragraph 3 of the first amendment, the plaintiff contends that, even though the defendant gave as the reason for dismissal and refusal to grant severance pay, repeated drunkenness after warning, its own letter stating this reason refutes the reason, in that the letter showed that the defendant had granted the plaintiff credit for two weeks' pay which, under the contract, was not allowable to an employee who was discharged for dishonesty, repeated drunkenness after warning, gross neglect of duty, or gross insubordination. The contention is without merit and the paragraph was properly stricken. The defendant could give two weeks' notice with pay in case of dismissal for one of the above-named reasons, even though under the contract it did not have to do so, and its gratuitously doing so would not render untrue or estop the defendant to deny its stated reason for dismissal.
2. The plaintiff in error in the main bill of exceptions contends that the court erred in dismissing his original motion for a new trial, which contained only general grounds. The court dismissed the motion because there was no brief of evidence filed with the motion. The general grounds of a motion for new trial cannot be considered where there is no brief of evidence. Blount-Hudson Chevrolet Co. v. Blount, 55 Ga. App. 864 ( 191 S.E. 875); Gartrell v. Theobold, 65 Ga. App. 161 ( 15 S.E.2d 470); Siegel v. State, 79 Ga. App. 410 ( 53 S.E.2d 686); Foster v. Jones, 208 Ga. 320 ( 66 S.E.2d 743). The court did not err in dismissing the motion for new trial.
3. Error is assigned on the court's failure to certify exceptions pendente lite, excepting to the failure to allow an amendment to the motion for new trial. The proffered amendment contained three special grounds, two of which complained of the refusal of the court to allow certain evidence, and the other complained of the failure to give without request a certain charge. Neither a brief of evidence nor a copy of the charge was attached to the amendment. For the reasons stated in division 2 above, no harm is shown in the alleged error of the court in refusing to certify the exceptions pendente lite to the refusal to approve the amendment to the motion for a new trial.
4. Error is assigned on the overruling of certain demurrers to the defendant's answer. Before this court can say that such ruling was harmful to the plaintiff in error, an examination of the evidence is necessary to determine whether, independently of the allegations contained in the pleading attacked, the evidence would have demanded a verdict for the defendant. Whitner v. Whitner, 80 Ga. App. 831 ( 57 S.E.2d 458); s.c., 207 Ga. 97 ( 60 S.E.2d 464). There being no brief of evidence in the record, we cannot say that such ruling was harmful.
The cross-bill of exceptions is dismissed. Code § 6-901.
The court did not err in sustaining the demurrers to and in striking paragraphs 3 through 8 of the amendment to the petition, in striking the last amendment, in overruling the demurrers to the answer, in dismissing the motion for new trial, or in failing to certify the exceptions pendente lite.
The judgments heretofore rendered in these cases are vacated; judgments in the main bill of exceptions are affirmed and the cross-bill of exceptions is dismissed. The opinion heretofore rendered in these cases is withdrawn, and the above opinion is substituted in lieu thereof.
Quillian and Nichols, JJ., concur.