“The crux of the summary judgment procedure is that if there is no substantial issue as to any material fact, then the court can apply the appropriate legal principles and define the legal rights of the parties without lengthy trials to establish the already undisputed facts.”
Caldwell v. Mayor &c. of Savannah,
Code Ann.
§ 110-1203, requires the trial court, in ruling on a motion for summary judgment, to consider “the pleadings, depositions, and admissions on file, together with the affidavits, if any,” in support of the grounds of the motion to ascertain if there is any issue of a material fact. The plaintiff’s right to maintain an action arises by the reason of the provisions of the employment contract negotiated between the Brotherhood and the Railway Company. See Hooser v. Baltimore & Ohio Railroad Co.,
The defendant Railway Company contends that it discharged the plaintiff at the request of the Brotherhood under the Union Shop Agreement (no contention was made that the plaintiff was discharged for any other reason); however, the Union Shop Agreement specifically provides that it will not be effective as to any employee while on a leave of absence. As to the Brotherhood, the undisputed evidence shows that on June 22, 1955, the Brotherhood requested that the plaintiff be discharged because the plaintiff was delinquent in his dues to the Brotherhood; that the plaintiff tendered his delinquent dues to the Brotherhood prior to the discharge date, .but the Brotherhood failed to communicate this fact to the Railway Company, and that by letter of July. 18, 1955, the Brotherhood admitted' that there was some “misunderstanding” concerning the plaintiff’s standing with the Brotherhood, and requested that the Railway Company reinstate him. It took the concerted action of both the defendant Brotherhood and the defendant Railway Company to discharge the plaintiff for reasons stated under the provisions of the Union Shop Agreement. Accepting the plaintiff’s testimony as true (as we must do upon consideration of a motion for summary judgment), each defendant participated in the discharge of the plaintiff under the provisions of the Union Shop Agreement at a time when the agreement was not applicable to the plaintiff. It therefore follows that an issue of fact was presented as to whether the Union Shop Agreement was applicable to the plaintiff at that time. The cardinal rule of the summary judgment procedure is that the court may not resolve the facts nor reconcile the issues, but the court can only look to ascertain if there is an issue. See 35B C. J. S. 628, Federal Rules of Civil Procedure, § 1206; 6 Moore, Federal Practice, Supp., Par. 56.15 [1], at p. 2101 (2d ed.); 3 Barron & Holtzoff Federal Practice & Procedure 96, § 1231.
*223 There is a substantial issue as to whether the provisions of the Union Shop Agreement were applicable to the plaintiff on the date he was discharged as an employee of the Railway Company.
In the briefs of counsel for the Brotherhood the contention is made that Article 30 of the Firemen’s Agreement 1 contains a contractual limitation as to the time within which the plaintiff could bring the present action, and since the plaintiff’s action was brought after the expiration of that time period, it is barred. On. the other hand, the plaintiff contends that none of the provisions of Article 30 of the Firemen’s Agreement are applicable to his suit, but relate to claims and grievances concerning “time claims,” which he contends is unrelated to the plaintiff’s action.
A defense based upon a contractual limitation as to the time in which an action may be filed differs from a defense based upon a statutory limitation of actions, in that the former may be raised by a general demurrer whenever the petition affirmatively shows the action to have been brought after the expiration of the time stated in the contractual limitation, while in the latter case a general demurrer must specify the statute of limitations as a ground. Cf.
Peeples v. Western Fire Ins. Co.,
Judgment reversed.
Notes
A labor contract between the Brotherhood and the Company which became effective January 1, 1954, is called “The Schedule of Wages, Rules and Regulations Governing Its Locomotive Firemen, Hostlers and Outside Hostler Helpers,” herein referred to as the Firemen’s Agreement. The Union Shop Agreement became effective between the Brotherhood and the Company on March 20, 1953, and appears as an appendix to the Firemen’s Agreement.