Gary v. Cent. Of Ga. Ry. Co

Decision Date30 September 1931
Docket NumberNos. 20969, 20971.,s. 20969, 20971.
Citation44 Ga.App. 120,160 S.E. 716
CourtGeorgia Court of Appeals

Syllabus by the Court.

The sustaining of the demurrer to certain items of damage claimed in the petition operated to eliminate the allegations as to these items, and the court did not err in overruling the defendant's motion to dismiss the petition because the plaintiff took no further steps towards striking such allegations.

Syllabus by the Court.

The petition stated a cause of action, not merely for the recovery of nominal damages, but for the amount which it appeared that the plaintiff employee would have earned from the date of his discharge to the commencement of the action.

Syllabus by the Court.

Upon a proper construction of the petition as a whole, it is apparent that the suit was predicated upon the theory that the rules and regulations of the labor organization of which the plaintiff was a member were embodied in the contract of employment, and that it was necessary that the plaintiff should remain a member of such organization in order to abide and comply with certain material conditions of the contract; accordingly, his resignation constituted a violation of the agreement, as a result of which the defendant had the right to treat the contract as ended and to be released from all future liability thereunder.

Syllabus by the Court.

But where the defendant failed to answer the suit in due time, and the case was in default, the defendant was committed to the proposition that the contract had not been breached by the plaintiff at the time the suit was filed, and was in like manner foreclosed as to all other matters relating to the grounds of liability inhering in the original petition.

Syllabus by the Court.

The result of the default, however, was only to estop the defendant from making an issue as to the liability claimed in the original petition, and did not bind the defendant to the allegations made in the plaintiff's amendments, the burden of proving which still rested upon the plaintiff. As to facts or conditions which occurred or existed subsequently to the filing of the suit, and for which the plaintiff sought no recovery in his original petition, the defendant was in no way deprived of its defenses, and could contest either its liability or the amount of the damage as fully as if the case had not been in default.

Syllabus by the Court.

In a case of this sort the plaintiff is en titled to recover interest as such on the principal sum awarded, provided the aggregate amount does not exceed the sum sued for.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Action by J. M. Gary against the Central of Georgia Railway Company. Judgment for plaintiff was entered for part of amount claimed, motions for new trial were overruled, and plaintiff brings error and defendant files cross-bill of exceptions.

Reversed on the main bill of exceptions, and affirmed on the cross-bill.

W. D. Lanier and W. K. Miller, both of Augusta, for plaintiff in error.

W. Inman Curry, of Augusta, for defendant in error.


J. M. Gary sued Central of Georgia Railway Company for damages for the alleged breach of a contract of employment. In 37 Ga. App. 744, 141 S. E. 819, this court held that the petition set forth a cause of action, and thus was not subject to general demurrer, as was ruled by the trial court, but that certain items of the damages claimed were not recoverable and that the court properly sustained demurrers to these items. In 40 Ga. App. 201, 149 S. E. 309, a verdict and judgment in favor of the defendant were ordered to be set aside because the defendant's answer was filed too late and should not have been considered. On May 5, 1928, the plaintiff amended his petition, by increasing the amount of his claim for lost wages from $6,260 to $11,970.91, so as to cover the additional amount "which he would have earned from the date of filing his petition to the date of trial, " and "which he has lost by reason of his wrongful discharge." During the progress of the trial now under review, the defendant, on May 22, 1930, made a further amendment of like import for the purpose of bringing his claim "down to date, " and alleging the sum of $17,500 to be the amount of his damages at that time.

An agreed statement was introduced in evidence, by which it appeared that the plaintiff ceased to be a member of the Brotherhood of Locomotive Engineers by resignation on December 3, 1924. The defendant contended that under a proper construction of the petition, even as adjudicated, the plaintiff was not entitled to recover more than nominal damages, since the petition contained no allegation to show that the plaintiff continued to be a member of the brotherhood after his alleged discharge, but that in any event the recovery should be limited to salary from August 8, 1924, the date of the alleged dis charge, to his resignation on the following December 3.

The plaintiff contended that since the case was in default, he was entitled to a verdict for the full amount of his wages from the date of the alleged breach to the date of the trial, less amounts earned by him at other work in the meantime, and that the amount of the damages to be thus arrived at constituted the only matter to be proved, and constituted the only issue as to which evidence could be considered.

The court agreeing only in part with the contentions of counsel for the defendant, and disagreeing altogether with the major contention of the plaintiff, directed a verdict in favor of the plaintiff for $990.12 principal, and $399.10 interest, which principal was the equivalent of the plaintiff's salary from August 8 to December 3, 1924. Exceptions to this ruling were taken in motions for a new trial and in other forms by each party, and, the motions for a new trial having been overruled, the plaintiff brought to this court a main bill of exceptions, and the defendant sued out a cross-bill. The record presents certain other questions which are not included in the above statement, but which will be dealt with in the opinion.

It is our opinion that the judgment on the main bill of exceptions should be reversed, and since this would make it necessary to decide the questions raised by the cross-bill, we will endeavor to discuss the questions for decision according to their logical sequence, irrespective of whether they are presented by the main bill or by the cross-bill.

1. The defendant moved to dismiss the petition because the plaintiff did not strike the allegations as to certain items of damage, as to which this court had affirmed the judgment of the trial court sustaining demurrers of the defendant. The court did not err in overruling this motion. "If a special demurrer is urged to a petition, or other pleading, already of file, attacking only certain parts of it, and is sustained, the result is to eliminate the parts so held bad." White v. Little, 139 Ga. 522 (3), 77 S. E. 646; Willingham v. Glover, 28 Ga. App. 394 (1), 111 S. E. 206.

2. We cannot agree with the contention that the allegations of the petition made a case for the recovery of nominal damages only. As will be shown later in this opinion, we think it was necessary for the plaintiff to continue to be a member of the brotherhood, in order to preserve the relation of master and servant under the contract sued on; but whether or not the plaintiff had the burden of making affirmative allegation as to this fact in order to state a cause of action is a different question, and is one which we do not deem it necessary now to decide. If the allegation was in fact necessary, it must have been implied in the original petition in orderfor it to have been true, as stated in paragraph 26, that by virtue of the plaintiff's wrongful discharge he was "deprived of his said earnings" of so much per month, in the total sum of $6,260, from the date of his discharge to the filing of the petition. Furthermore, in paragraph 20 the petition alleged that the contract sued on was still of force. Whether or not this point was adjudicated in our first decision, we now hold that the petition stated a cause of action, not merely for the recovery of nominal damages, but for the sum of $6,260, as the amount of the earnings of which the plaintiff appeared to have been deprived at the time the suit was filed.

3. The plaintiff's suit was predicated absolutely upon the theory that the rules and regulations of the brotherhood were embodied in his contract of employment. A copy of these rules was attached to the petition, and contained many provisions which were not indicated in our first decision in this case, and some that were not referred to in the second decision. Be it said in this connection that this court did not hold, and did not intend to hold, in its original decision that the brotherhood had authority to enter into a contract with the defendant in behalf of the plaintiff member. This question was not involved, since the petition alleged, in effect, that the plaintiff himself, either directly or by ratification, made a contract with the defendant containing the rules and regulations of the brotherhood, as agreed to by its officers and the officers of the defendant company. See, in this connection, Piercy v. Louisville & Nashville R. Co., 198 Ky. 477, 248 S. W. 1042, 33 A. L. R. 322; Snow Iron Works v. Chadwick, 227 Mass. 382, 116 N. E. 801, L. R. A. 1917F, 755; Hudson v. Cincinnati, New Orleans, etc., Ry. Co., 152 Ky. 711, 154 S. W. 47, 45 L. R. A. (N. S.) 184, Ann. Cas. 1915B, 98.

It is unnecessary to repeat the many allegations of the plaintiff which disclosed an intention on his part to hold the defendant to each and all the terms and conditions of the agreement between the defendant and the plaintiff's organization. Under the provisions of this agreement, we think it was necessary that the plaintiff should remain a member of the organization, in...

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