Howell v. Fulton Bag & Cotton Mills

• Decision Date: 14 July 1939
• Docket Number: 12913.
• Court: Georgia Supreme Court
• Parties: HOWELL et al. v. FULTON BAG & COTTON MILLS et al.

4 S.E.2d 181

188 Ga. 488

HOWELL et al. v. FULTON BAG & COTTON MILLS et al.

No. 12913.

Supreme Court of Georgia

July 14, 1939

J V. Poole and C. D. Stewart, both of Atlanta, for plaintiffs in error.

John M. Slaton and James J. Slaton, both of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

JENKINS Justice.

Howell and numerous other former employees sued Fulton Bag &amp Cotton Mills and two of its officers, for an accounting and recovery of their alleged respective shares of a benefit fund for sick employees, into which the employees of the mills had paid twenty-five cents a month from their salaries, which had been maintained by the mills corporation for more than twenty-five years before the passage of the social-security act in 1937, but which was then discontinued and distributed among existing employees. The defendants filed demurrers on numerous general and special grounds. The general demurrer was not passed upon. Amendments to the petition were filed in response to special demurrers and rulings thereon. Paragraph 21 of the petition alleged: 'Petitioners show that they were not employees of the Fulton Bag & Cotton Mills at the time said distribution was made and received no part of the money distributed by the defendants; that they had all been employees of the said Fulton Bag & Cotton Mills, and had contributed 25 cents each month of the wages to the funds, part of which was distributed by the said Cotton Mills to its then employees during the summer of 1937.' The defendants specially demurred to this paragraph, on the ground that 'the allegations are vague and indefinite, and they do not show any right of the plaintiffs to make any complaint, and plaintiffs do not set forth what any of them received as sick benefits while they were employees.' On January 25, 1939, the court passed an order sustaining this among other grounds of the special demurrer; and provided that 'plaintiffs are granted 30 days in which to amend their petition in conformity with the ruling herein, or, in default, the petition to stand dismissed.' No exceptions pendente lite was taken to this order; no error was assigned thereon; and the present bill of exceptions, brought only from a subsequent order, was not tendered until May 1, 1939. After the above order on the special demurrer, the plaintiffs filed two amendments, the first and only one now material alleging as follows:

'3. Plaintiffs show that a record of the amount taken out of plaintiffs' wages during their employment was kept by defendants; also a record was kept by defendants of the amount of money that was paid out as sick benefits to plaintiffs and other employees of the Fulton Bag & Cotton Mills.

'4. Plaintiffs show that no records of the amount taken out of plaintiff's wages, nor the amounts paid out to plaintiffs as sick benefits, or payments, were kept by plaintiffs or any one other than defendants.

'5. Plaintiffs show that all these records and information are now in possession and control of defendants; that plaintiffs intend to have these records present in court at the proper time and place; that defendants have kept plaintiffs' money and also the records concerning the amount deducted and kept by them.'

In the same amendment the plaintiffs set forth an itemized statement, showing the exact dates when they began and ended their employment, and the exact amounts which they paid into the sick benefit fund. However, neither in this nor any amendment did they conform to the ruling which required them to allege 'what any of them received as sick benefits while they were employees.' The only reason assigned for this failure appears in the above-quoted portion of their first amendment. On the hearing of a motion to dismiss the action because of the non-compliance with the order requiring the particular amendment, the court, on April 4, 1929, passed an order, reciting the pleadings, the order stated, the failure to file such amendment, and that 'this was a material fact called for,' sustaining the motion of the defendants, and dismissing the action 'in conformity with the order' requiring the amendment. The plaintiffs except only to the last-mentioned order. In their brief they state that the only questions before this court are whether the paragraph in question in their petition was 'so vital to the life of the cause of action as to warrant the court in dismission plaintiffs' entire suit,' even if there was no proper amendment; and whether there was a proper amendme...