Crow v. Southern Ry. Co. , 66 Ga. App. 608 ( 1942 )

Under the law and the evidence a verdict in favor of the defendant was demanded; and the court did not err in overruling the plaintiff's motion for new trial.

DECIDED FEBRUARY 12, 1942. Carl B. Crow sued the Southern Railway Company and alleged in substance that in the year 1934 he was employed by the defendant as a switchman, and that in October, 1937, the defendant entered into an agreement regulating the scale of wages and fixing the rules and regulations for trainmen, yardmen, and switch tenders, the agreement being reduced to writing and accepted by a representative of the defendant and a representative of the employees; that article 31 of the agreement provided that employees of the type referred to would not be discharged or demerited without an investigation, which would be made by a proper officer within five days, if possible, and in the presence of the employee; that such employee would have the privilege of having a representative of his own selection to assist in the investigation; that if discharged such employee would be furnished with a letter showing cause of dismissal, term of service, and the capacity in which employed; that in the early part of 1940 the plaintiff was injured, and it was necessary for him to remain away from his work, and that when he was able to resume work he sought an interview with the superintendent of terminals with reference to returning to duty, but the superintendent refused to discuss the matter with him. It was further alleged that, although no charges of any character were ever preferred against him, the plaintiff recently learned for the first time that the defendant claimed that he was discharged in February, 1940; that the rule above referred to was not complied with, no investigation was held, no notice was received by him of any charges, and, therefore, his discharge was illegal and in violation of the contract entered into between the defendant and the body of employees of which the plaintiff was a member. The plaintiff sued for the wages which he would have earned had he been on regular duty.

The defendant filed its plea and answer, denying substantially all of the plaintiff's petition, and set up section 32 of the agreement of October 1, 1937, which provided in part: "No grievance will be entertained unless presented in writing to the superintendent within sixty days after its occurrence. Trainmen, yardmen, and switch tenders shall have the right to appeal, provided such appeal be made in writing within sixty days after the superintendent had rendered his decision." It was alleged that the plaintiff failed to present his grievance, if any existed, within sixty days of his discharge, and that he was not entitled to recover for a violation of the agreement referred to in his petition.

The plaintiff testified that sometime in the latter part of 1939 he sustained an injury while on duty, and that when the doctor permitted him to return to work he went to see Mr. Crang, the superintendent of terminals, and discussed with him some matters which he thought it his duty to report. He fixed this visit as about January 16th, and stated that during the discussion Mr. Crang told him that he, the plaintiff, was drunk and to come back and see him in a day or two when he was sober. The plaintiff further testified, that he went back the second day and that Mr. Crang was not in his office; that he went again the following Sunday and met Mr. Crang coming out of the yard office, and that Mr. Crang told him that he could not talk to him then but to come back Tuesday; that he went again Tuesday and Mr. Crang again told him that he did not know whether he could talk to him or not but he could "stick around" if he wanted to; that he then left and went to South Carolina, never having been able to see Mr. Crang, and that he then wrote him and asked him what he was going to do about putting him back to work, to which letter he received no reply; that later, about July, he again wrote Mr. Crang, and asked him about putting him back on the "board" so he could be called, to which letter he received a reply from Mr. Crang stating that he would not put the plaintiff back on the board. All of the correspondence was introduced in evidence. The plaintiff further testified that this was the first information he ever received from Mr. Crang or the company that he was not to be allowed to go back to work. He stated that he never did have any written notice served on him of any character that he was dismissed from the service; that he was never notified of any hearing before the board and was never given a hearing of any sort on the question whether or not he should be discharged. He testified as to what his lost earnings amounted to, and that he received no pay for the time he was off. On cross-examination he admitted that when he first went to talk to Mr. Crang he had been drinking; that rule "G" prohibited an employee being intoxicated on duty, but that he did not understand it to mean that it imposed any penalty for being intoxicated on the premises. He denied that Mr. Crang told him to come back the next day "for investigation." The plaintiff further identified a letter which he stated he wrote on January 31, 1940, apologizing to Mr. Crang for his conduct in going on the premises while drinking. The letter was introduced in evidence by the defendant. The plaintiff further testified that shortly after his conversation with Mr. Crang his dues as a member of the trainmen's union lapsed, and that he thought that by reason of the nonpayment of dues he had no right to ask the order of railroad switchmen to handle his matter through the grievance committee; that he presented no grievance in writing to the superintendent within sixty days after his discharge for the reason that he did not know he was discharged until he received a bulletin which was enclosed in Mr. Crang's letter in July, some four or five months after the defendant contended the discharge had been made.

Two witnesses for the defendant testified that on the morning of January 16, 1940, they saw the plaintiff, at which time he was intoxicated, and that he said that he was going over to see Mr. Crang, and that he "thought he would be doing a good deed to go and get fired, so he thought he would go on and get it over with." J. R. Crang testified that he was superintendent of terminals for the defendant; that on January 16, 1910, the plaintiff came to his office and was so drunk the witness could not talk to him; that he said to the plaintiff "You are in no condition to talk to me today. You come back at nine o'clock in the morning and I will give you an investigation." (Meaning an investigation for his drunkenness in violation of the rules of the company.) He testified that the plaintiff did not come back and ask for an investigation the next day, and that he did not recall seeing him again until after he received a letter from him, dated the 21st of January, in which letter the plaintiff acknowledged that at the time he was under the influence of intoxicants and was too embarrassed to come to see him. He testified that he had issued the bulletin because the plaintiff had not shown up for investigation, but had admitted in writing his drunkenness in violation of the rules of the company in the agreement referred to; that the plaintiff had not demanded any investigation at that time or thereafter, and that the bulletin was issued on account of the letter dated January 21st acknowledging that the plaintiff was under the influence of intoxicants; that no grievance was filed with him or presented by the order of railroad switchmen or trainmen, and that the plaintiff's suit was the first notice he had that the plaintiff claimed he had been unjustly discharged. The witness then explained the method usually followed by the Brotherhood of Railroad Trainmen with reference to filing grievances. On cross-examination he testified that he had put the plaintiff "out of service for violation of the rules; rule G." He further testified that when he received the plaintiff's letter of January 21st he understood that the plaintiff was resigning or leaving town; that when he got the letter he construed it as relieving him in the way of preferring written charges against the plaintiff, and that the only thing he did was to post the bulletin on the board and to notify the plaintiff. He further testified that the day the plaintiff admitted his intoxication was "the day I consider he was discharged."

The plaintiff, in his letters of January 16, 1940, and July 5, 1940, to Mr. Crang, admitted his intoxication, for which he apologized and left the matter of his dismissal up to Mr. Crang, the superintendent of the defendant.

At the conclusion of the evidence the court directed a verdict in favor of the defendant, and the exception here is to the judgment overruling the plaintiff's motion for new trial assigning error on the direction of the verdict. The plaintiff's contract of employment by the defendant was for an indefinite period and could be terminated by either party at will. Code, § 66-101. But the plaintiff contends that, after the defendant, on October 1, 1937, entered into an agreement with its employees regulating the schedule of wages and fixing the rules and regulations for trainmen, yardmen, and switch tenders (to which last group the plaintiff belonged), it could not discharge or demerit such employees without an investigation, and that his discharge was illegal on account of a violation of this agreement by the defendant.

Conceding, but not deciding, that the plaintiff as an individual had a right to bring an action against the defendant for a violation of that agreement, still he failed to show any right to recover in the present case. The evidence shows that on January 16, 1940, the plaintiff, while intoxicated, went to the office of J. R. Crang, the superintendent of terminals for the defendant, to see Crang and discuss with him certain reports and business of the defendant company, and that Crang told the plaintiff that he was drunk and to leave the premises of the company and to report back next morning at nine o'clock, and that he would give the plaintiff an "investigation," but that the plaintiff did not come back or ask for an investigation, and that he had a bulletin posted at different places in the yards of the company, stating that a switchman had been dismissed, and wrote the plaintiff notifying him of his discharge for a violation of rule "G" of the company. Rule "G" was as follows: "The use of intoxicants by employees while on duty is prohibited. Their use is sufficient cause for dismissal." The plaintiff also stated in his written application for employment that he would "abstain from the use of intoxicants while in the service of the company." The plaintiff testified that he went back the next day and a couple of days later, but did not get to see or have a conference with Mr. Crang, and did not get the letter advising him of his discharge. But he wrote Crang a letter just five days later, on January 21, 1940, in which he admitted that he was drinking at the time above referred to and stated "I most humbly beg you to accept my apology for this, regardless of what you do with me. I had planned on leaving town tomorrow but instead I am mailing this to you so you will get it before I come out to let happen to me what might." The plaintiff, in a letter to Crang on July 5, 1940, said: "Believing you to be an absolutely fair-minded gentleman, I have left my case entirely up to you, even I was a member of the trainmen I fully realized I had done something I shouldn't, so I have never tried to get anyone to bother you with my case and I do hope for a chance to get back on the board." Crang testified that he notified the plaintiff personally of his intoxicated condition while on the premises of the company to see him on business of the company, and that when the plaintiff in writing voluntarily admitted his intoxicated condition he discharged him. Section 32 of the agreement referred to above as having been made on October 1, 1937, by the defendant with certain of its employees provided: "No grievance will be entertained unless presented in writing to the superintendent within sixty days after its occurrence. Trainmen, yardmen, and switch tenders shall have the right to appeal, provided such appeal be made in writing within sixty days after the superintendent has rendered his decision."

The evidence demanded a finding that the plaintiff did not file with the superintendent, or anyone else, any grievance or protest as to his discharge within sixty days, as provided for in section 32 of the agreement, or at any other time. Consequently, the court did not err in directing a verdict for the defendant and in overruling the plaintiff's motion for new trial.

Judgment affirmed. Stephens, P. J., and Felton, J., concur.