Gary v. Central of Georgia Railway Co.

37 Ga. App. 744 | Ga. Ct. App. | 1928

Bell, J.

(After stating the foregoing facts.) If the contract of employment had contained no provision as to when or how it might be terminated, the defendant might have discharged the plaintiff at will; but since, under specific stipulations, the relation could be severed only in a particular way or on the happening of a certain event, the act of the defendant in dismissing the plaintiff without a compliance with these conditions would constitute a breach of the contract. According to the terms of the agreement, the plaintiff could not he demerited, suspended, or discharged from the service of the company without a fair and impartial trial, had in a manner and before persons stated, after notice of the charges for investigation and opportunity to have two enginemen as his representatives to discuss the points at issue. The plaintiff, in his petition, denies that these conditions were complied with. We think that the letter of August 8, 1924, discloses that the trial of August 6, 1924, was in reference only to demerits, and it is our opinion that the defendant could not rightfully dismiss the plaintiff from its service where the only issue for investigation related to such a matter. The clear intent and purpose of the agreement was that the plaint..!' could only be dismissed after a hearing which involved the question of the right of the defendant to dismiss him upon some ground. The contract contains no provision authorizing the dismissal of the plaintiff merely for an accumulation of demerits, in the absence of a trial upon that question. In the case of Crotty v. Erie E. Co., 149 App. Div. 262 (133 N. Y. Supp. 696), which was an action for a breach of a contract of employment, the petition contained the following allegation: “That in and by the terms of said employment-.it was provided that plaintiff, as such yardman, would not be suspended (except suspension pending investigation), discharged, or have record entered against him without a hearing and full investigation, which would be given promptly; that he might have present during such investigation any actual witnesses of the occurrence under investigation, except discharged employees, and when found blameless, would receive full pay for the time lost.” The court, in discussing the case in the light of this averment, said: “In effect, therefore, the contract provided that the term of plaintiff’s hiring should continue until he had been given a hearing and full investigation, with the right to call witnesses of the occurrence under investigation. While the subject of the hearing and investigation is not expressly stated, it must relate to some * occurrence.’ As the only ‘ occurrence ’ which could properly be the subject of an investigation respecting his continuance in service must be some alleged dereliction in duty, we think that the contract fairly implies that it shall continue until such dereliction is established.

“This view is confirmed by the provisions of the contract to the effect that, if found ‘ blameless ’ after suspension, he shall receive full pay for the time lost. He can be found culpable or blameless only with reference to his own conduct. The complaint alleges that plaintiff was not given a hearing or full investigation, and that he was not afforded the opportunity to present any witnesses in his behalf. The contract was not, therefore, legally terminated by defendant. It is true that the decision of the master after srrch hearing as to the sufficiency of the charge may be final and conclusive, in the absence of such bad faith as would constitute fraud; but, when the parties have thus agreed, the servant has a right to insist upon a full investigation, relying upon the fairness and justice of the master.” So we think in the present case that in the absence of a new agreement between the parties, or possibly an abandonment by the plaintiff, the contract would continue of force until terminated in the manner prescribed by its terms. The statement in the rules of the brotherhood, that letters from the management in regard to compensation and working conditions shall remain in effect, does not purport upon its face to provide a method for terminating the contract different from that prescribed in Article 31. “Working conditions” hardly implies conditions and terms of the contract of emplojonent. It was therefore not necessary for the plaintiff to allege what were the contents of* the letters from the management, or that he was dismissed in a manner contrary to the terms thereof. If any right to discharge the plaintiff on other conditions than-as stated in Article 31 was reserved in these letters, this would be a matter to be pleaded by the defendant. As will be shown later, the petition contained sufficient allegations as to one recoverable item of damages, and we think it was good as against a general demurrer.

The court did not err in sustaining ground 1 of the special demurrer attacking the allegation in paragraph 9 of the petition, that the plaintiff was discharged prematurely because of his alleged right to remain in the defendant’s service pending his appeal. The contract contained no provision as to supersedeas, and if the plaintiff had been given the trial as required by Article 31, and if the trial had resulted adversely to him, the defendant’s right then to discharge him would not have been in abeyance pending an appeal, nor during the period provided for such appeal. No decision in this case is necessary, and none is made, as to whether the defendant could have discharged the plaintiff after such trial, regardless of whether the result thereof was favorable or unfavorable to the plaintiff.

The damages which the plaintiff claimed because of the loss of his right of seniority, as it is set forth in this case, and because of his having been blacklisted and boycotted by other railroads, were too remote and speculative to constitute proper elements of recovery. “Remote or consequential damages aie not allowed whenever they can not be traced solely to the breach of the contract, or unless they are capable of exact computation, such as the profits which are the immediate fruit of the contract, and are independent of any collateral enterprise entered into in contemplation of the contract.” Civil Code (1910), § 4394. See also Berlin v. Cusachs, 114 La. 744 (38 So. 539); Inglesli v. Hickson Inc., 195 App. Div. 585 (2) (186 N. Y. S. 846); Mastoras v. Chic. &c. Ry. Co., 217 Fed. 153; Westwater v. Rector of Grace Church, 140 Cal. 339 (73 Pac. 1055). Accordingly, the court properly sustained grounds 3 and 4 of the special demurrer, challenging the plaintiff’s right to recover such damages.

Nor was the plaintiff entitled to be compensated for the alleged loss of his right in the group policy of insurance, assuming that the value of such right was sufficiently shown. This policy appears to have been issued subsequently to the making of the contract of employment, and is in no way-referred to therein. “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach.” Civil Code (1910), § 4395. The court therefore properly sustained ground 5 of the special demurrer.

If the defendant’s dismissal of the plaintiff from its service constituted a breach of the contract, as was shown by the petition, he had the right to sue immediately for any special injury arising from its breach, and in such a case the measure of recovery is, prima facie, full pay at the contract rate; and in estimating the amount all facts down to the time of the trial may be considered. The averment that the plaintiff was deprived of his earnings from the date of his discharge on August 8, 1924, to the time of the suit, aggregating $6,260, and was thus damaged in this sum, was good as against general demurrer. The defendant did not demur specially to this claim. See Civil Code (1910), § 3588; Ansley v. Jordan, 61 Ga. 482; Roberts v. Crowley, 81 Ga. 429 (3) (7 S. E. 740); Realty Co. v. Ellis, 4 Ga. App. 402 (4) (61 S. E. 832); Ga., Fla. & Ala. Ry. Co. v. Parsons, 12 Ga. App. 180 (2) (76 S. E. 1063); Walker v. Jenkins, 32 Ga. App. 238 (123 S. E. 161), and eit.

We conclude that the court erred in sustaining the general demurrer, and also ground 2 of the special demurrer, which was a mere amplification of the general demurrer. In all other points the judgment complained of was correct.

Judgment' reversed.

Jenlcins, P. J., and Stephens, J., concur.