Suggs v. Brotherhood of Locomotive Firemen and Enginemen

• Decision Date: 20 September 1962
• Docket Number: No. 1,No. 39546,39546,1
• Citation: 127 S.E.2d 827,106 Ga.App. 563
• Parties: D. W. SUGGS v. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN et al
• Court: Georgia Court of Appeals

Page 827

127 S.E.2d 827

106 Ga.App. 563

D. W. SUGGS v. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN et al.

No. 39546.

Court of Appeals of Georgia, Division No. 1.

Sept. 20, 1962.

Syllabus by the Court.

1. The court did not err in overruling the demurrers to the defendants' amendments to their answers setting forth a time bar to the action under Article 30 of the Employment Contract between the Railroad and the Brotherhood.

2, 3. It was not error to overrule the demurrers to defendants' second motions for summary judgments setting up a technical ground, in view of the amendments to the answers allowed after the first motions for summary judgments were denied. It was not error to overrule the demurrers to said motions or to grant said motions for the reason that plaintiff failed to institute the present action within twelve months from the final action of the railroad's highest officer designated to act on appeals and who approved the withdrawal of the plaintiff's appeal by his union representatives.

This is the second appearance of this case in this court. In the first appearance (Suggs v. Brotherhood of Locomotive Firemen & Enginemen et al., 104 Ga.App. 219, 121 S.E.2d 661, this court reversed the judgment of the lower court granting both defendants' summary judgments, holding that an issue of fact was presented as to whether the union shop agreement was applicable to the plaintiff at the time of his discharge by the defendants. It was also held that since the plaintiff's petition did not show the provisions of article 30 of the firemen's agreement, which it is contended by the defendant brotherhood, contains a contractual limitation as to the time within which the plaintiff could bring the action, the defendant must allege and prove this defense and that since the defendants neither set up such a defense in their answers nor specified it as a ground of their motions for summary judgments, there was no question regarding such limitation before this court. After the judgment of this court was made the judgment of the trial court, the trial court denied the motions of both defendants for a summary judgment. Thereafter, both defendants amended their answers. The amendment of the railroad set up the alleged contractual limitation in articles 30 and 31 of the employment agreement between the union and the railroad. The amendment of the brotherhood set up the alleged contractual limitation in article 30. The defendants then filed second motions for summary judgments specifying the limitations alleged in their amendment as a ground or grounds of the motions for summary judgments. The court overruled the plaintiff's general demurrers to the defendants' amendments and his motions to dismiss the motions for summary judgments and sustained the motions of the defendants for summary judgments. The plaintiff excepts to above judgments.

J. Neely Peacock, Jr., Albany, for plaintiff in error.

Divine & Busbee, George D. Busbee, Albany, Julian C. Sipple, Savannah, for defendants in error.

FELTON, Chief Judge.

1. It was not error for the trial court to overrule the plaintiff's demurrers to the defendants' amendments. A litigant may at any stage of the cause amend his pleadings either in form or substance. Code Ann. § 81-301. It will be shown in another division of this opinion that article 30 of the firemen's employment agreement was applicable in this case.

2. The overruling of the defendants' first motions for summary judgments was not a bar to their second motions for the reason that the first motions did not require a decision as to the applicability of article 30 of the amendment agreement since that defense was not properly pleaded, whereas, the second motions did raise this issue. 'Where the second motion for summary judgment is based on matters not involved in the decision on the first motion, 'the law of the case' is not involved. Breeland v. Southern Pacific Co. (C.A. 9th, 1955) 231 F.2d 576, 22 F[ed] R[ules] Serv. 56 c. 55, Case 1'; 6 Moore, Fed. Practice, (2d Ed., 1961 Supp); Par. 56.14, at p. 70; Beedy v. Washington Water Power Co., 238 F.2d 123 (C.A. 9th, 1956). '* * * If a motion for summary judgment is unsuccessful the court has the power to permit a second motion for summary judgment prior to trial, when a proper showing therefor is made.' 6 Moore, op. cit., Par. 56.08, p. 2048.

3. The court did not err in granting the defendants' motions for summary judgment after having allowed the defendants' amendments to the answers based on the provisions of article 30 of the firemen's employment agreement specified as grounds of the motions for summary judgments. This question was not adjudicated on the prior appeal of this case for the reason that article 30 was not pleaded by the defendants and was not made a ground of the motions for summary judgments. The part of article 30, above referred to, containing the contractual limitation is as follows: Article 30(c): 'All claims or grievances involved in a decision of the highest officer shall be barred unless within twelve (12) months from the date of said officer's decision proceedings are instituted by the employee or his duly authorized representatives before a tribunal having jurisdiction pursuant to law or agreement of the claim or grievance involved. It is understood, however, that the parties may by agreement in any particular case extend the twelve-months' period herein referred to.' The construction of an unambiguous contract is a question of law for the court. Code § 20-701. Although the title of article 30 in the employment contract is 'Time Claims,' to restrict the provisions of the article to merely claims for back pay due would be to disregard the phrase 'all claims or grievances' in the body of the article. 'The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.' Code § 20-704(4). The title, not being in truth a part of the article, cannot be used to throw light on or to vary the unambiguous language of the body of the contract. It would seem that the statutory construction rule would apply here. See Code Ann. § 102-102, catchword 'Title.' This article is the only article in the contract which provides for limitations of actions involving grievances, as distinguished from purely administrative procedures for appeal. 'Grievances' include illegal discharge. It is obvious that the title to this article was shortened by inadvertence or mistake and that the true title of the article should be 'Time Limit on Claims' as the title appears in Section 17 in the agreement of August 11, 1948, published by the Eastern, Western and Southeastern Carrier's Conference Committees and the various brotherhoods, Section 17 of said agreement being identical with article 30 of the agreement between the Firemen and the Central of Georgia Railway Company. The plaintiff contends that article 31 of the employment contract governs instead of article 30. Article 31(b) is as follows: 'Discipline will be applied within 30 days after notice. No complaints or appeal will be entertained unless presented in writing to the superintendent within 30 days after its occurrence. Enginemen shall have the right to appeal provided such appeal is made in writing within 30 days after the superintendent has rendered his decision.' This provision is unquestionably a time limit on administrative appeals within the machinery of the provisions of the contract between the union and the railroad. Before an action at law could be filed under article 30, the highest officer of the railroad designated to handle claims must have made a decision on the administrative appeal. The time limit on the administrative appeal is 30 days from the time when the superintendent of the railway company notifies the employee that his employment is at an end. The highest officer of the Central of Georgia Railway Company designated to handle claims was Mr. W. J. Collins. On June 27, 1955, Mr. E. C. Glenn, superintendent of the railway company notified the plaintiff in writing that he had been discharged by the brotherhood for failing to pay his dues and that pursuant to article 31 of the firemen's agreement he was entitled to an investigation if he so desired, and that in the event the plaintiff failed to request an investigation he would be considered out of the service of the railway company effective July 5, 1955. It was stipulated that the plaintiff did not request an investigation within the time allowed. The plaintiff does not show by...