Snyder v. Savannah Union Station Co., 33900

• Decision Date: 10 March 1952
• Docket Number: No. 2,No. 33900,33900,2
• Parties: SNYDER v. SAVANNAH UNION STATION CO
• Court: Georgia Court of Appeals

Page 382

70 S.E.2d 382

85 Ga.App. 851

SNYDER v. SAVANNAH UNION STATION CO.

No. 33900.

Court of Appeals of Georgia, Division No. 2.

March 10, 1952.

Rehearing Denied April 4, 1952.

Syllabus by the Court.

A suit for damages, based upon the alleged wrongful discharge of the plaintiff and the breach by the defendant employer of the contract of hiring, was properly dismissed on general demurrer, which it affirmatively appears from the petition as amended that such contract was for an indefinite period of time.

Israel Snyder brought suit in the City Court of Savannah against Savannah Union Station Cmpany, a Georgia corporation, to recover $5,000 as damages, and alleged: that he was employed by the defendant in June, 1948, as a porter, commonly called a 'red cap'; that he was so employed for an indefinite period of time at a salary which, with other sources of income resulting from such employment, amounted to $200 monthly; that his services as such employee were always satisfactory with the defendant, the plaintiff performing faithfully all duties required of him; that he performed all reasonable duties demanded of him by the defendant, notwithstanding the imposition by it of harsh, unreasonable, unjust, and difficult rules by which he was required to continue in such employment; that among such rules under which the plaintiff was required to work was one that, if he was 'garnisheed' as much as three times while so employed he would be summarily discharged; that an action was instituted against him by McCranie's Service Station for $8, but that he never received or knew about the filing of said action, as no summons was ever served upon him, and a garnishment was thereafter executed against him, naming the defendant as garnishee; that the plaintiff could have defended himself against said action, as he did not owe the debt claimed, if a summons had been served upon him, or if he had had actual knowledge of the pendency of the action he could have settled the same in full as it was for a small amount; that there had been two garnishments against him prior to the time of the above garnishment, and because of such rules, none of which were accepted by the plaintiff, he was summarily discharged by the defendant on May 25, 1951; that the defendant was without any legal right or authority to discharge the plaintiff for said cause and did so to the plaintiff's damage; that the plaintiff has a family to support, and the money earned in the employ of the defendant was essential toward the support of himself and family, and he was discharged because of said rules of the defendant, which are harsh and unreasonable, and he has been damaged in the sum aforesaid by reason of his wrongful discharge.

The defendant demurred generally to the plaintiff's petition on the ground that it fails to set forth a cause of action.

On September 13, 1951, the plaintiff amended his petition, subject to demurrer, alleging: that the defendant on May 25, 1951, attempted to discharge him from his position as 'red cap,' where his income aggregated $200 monthly, and his discharge was wrongful, unreasonable, and in violation of the agreement; that his contract of employment at an income of $200 a month is now of force and effect, and the defendant is liable to him for $200 each month during the continuation of this contract; that this amount is due, notwithstanding the defendant's attempted discharge, and the plaintiff should recover at $200 a month from May 25, 1951, until paid, as damages for the breach of the contract of employment by the defendant.

Thereupon, the defendant renewed its general demurrer to the petition as amended; and demurred specially to the petition as amended, setting out that paragraph 6 should be stricken because it sets forth no facts showing how the plaintiff arrived at $5,000 as his damages; and because by paragraph 2 of the amended petition the plaintiff has elected to seek a new and inconsistent remedy, and because paragraph 2 of the amended petition should be stricken, in that neither said paragraph 2 nor any other paragraph alleges the existence of a contract of employment for a definite period of time, but paragraph 2 of the original petition states that he was employed for an 'indefinite period.'

On October 3, 1951, the court rendered two orders. The general demurrer to the original petition was sustained, in that the 'second paragraph of the original petition stating the plaintiff states that he was employed for an indefinite period * * *' (Ga. Code, § 66-101); and 'an indefinite hiring may be terminated at will by either party.' See Lambert v. Georgia Power Co., 181 Ga. 624, 183 S.E. 814. The general demurrer to the amended petition was sustained, said petition alleging that the plaintiff 'reiterates all of the allegations in his original petition,' and paragraph 2 of the original petition alleges that 'the plaintiff states that he was employed for an indefinite period.'

Thereupon, on October 19, 1951, the plaintiff again amended his petition and by this amendment 'reiterates each and every material allegation contained in his original and amended petition,' and alleges that the defendant has in its employ several persons of similar occupation, and has had for a number of years, no such persons being hired by the month and neither was it the custom of the defendant company to employ by the month, with an understanding, that the conduct of employment was for no longer term than one month; that he had no knowledge of the filing against him of said action by said McCranie Service Station, and did not know thereof until the garnishment was served on the defendant, and the plaintiff, therefore, had no opportunity to defend said action; and that, if process therein was served upon him, it was left at his residence and he never saw it, or had any knowledge that the summons was left there.

The defendant thereupon, on October 20, 1951, renewed its general and special demurrers to the plaintiff's petition as amended, and says that the same failed to state a cause of action against it.

The trial judge on October 22, 1951, sustained the defendant's renewed demurrer to the petition and amendments, and dismissed the petition as amended. To this judgment, the plaintiff excepts on October 25, 1951.

Lewis L. Scott, Savannah, for plaintiff in error.

Anderson, Connerat, Dunn & Hunter and James Houlihan, Jr., all of Savannah, for defendant in error.

GARDNER, Presiding Judge.

1. On October 3, 1951, the court sustained the general demurrer of the defendant to the original petition and to the same as amended by the first amendment. The plaintiff did not except to this ruling, which was final; but on October 5, 1951, without moving to vacate or set aside the said judgment of October 3, 1951, sought to further amend his petition, which the court allowed subject to demurrer and objection. Said order of October 3, 1951, was final and there was nothing pending in court to be amended. The plaintiff should have sought to have the same vacated or have excepted directly to that judgment. The exception here is to the order of October 22, 1951, sustaining the defendant's renewed demurrer of October 19, 1951, to the original petition as amended by the two amendments, which order dismissed the...