Opinion
38659.
DECIDED MAY 18, 1961. REHEARING DENIED JULY 27, 1961.
Action for damages. Dougherty Superior Court. Before Judge Crow.
J. Neely Peacock, Jr., for plaintiff in error.
Divine Busbee, George D. Busbee, Julian C. Sipple, contra.
1. It is error to grant a motion for a summary judgment where there are substantial issues of material facts.
2. A motion for a summary judgment must specify the grounds relied upon by movant as a basis for a summary judgment.
DECIDED MAY 18, 1961 — REHEARING DENIED JULY 27, 1961.
D. W. Suggs filed suit against the Brotherhood of Locomotive Firemen and Enginemen, a labor union (hereinafter referred to as the Brotherhood), and the Central of Georgia Railway Co. The plaintiff's action is one seeking damages resulting from an alleged wrongful dismissal of the plaintiff on July 5, 1955, as an employee of the defendant, Central of Georgia Railway Co., such dismissal being at the request of the defendant Brotherhood (because the plaintiff was delinquent in payment of his dues), under a Union Shop Agreement whereby the railway company contracted to employ only those employees in good standing with the Brotherhood.
The Union Shop Agreement is as follows: "This agreement made this 20th day of March, 1953, between the Central of Georgia Railway Company and the Brotherhood of Locomotive Firemen and Enginemen shall become effective April 1, 1953, as follows: 1. As a condition of employment all employees covered by the Firemen's Agreement shall, within sixty (60) days after their employment, or within sixty (60) days after the effective date of this agreement, whichever is later, become and remain members in good standing in the Brotherhood during the life of this agreement, except as provided below. 2. Expulsion from the Brotherhood for reasons other than non-payment of periodic dues, initiation fees and assessments (not including fines and penalties) shall not be cause for the termination of services or dismissal of an employee from the service of the Company. The Brotherhood shall not refuse to admit to membership any person who may come within the bargaining unit, except in accordance with its constitutional requirements. No employee refused membership in the Brotherhood shall be dismissed under provisions of this agreement. 3. The requirements of membership in the Brotherhood shall be satisfied by any employee who maintains membership in any one of the other labor organizations national in scope, organized in accordance with the Railway Labor Act, and representing employees in engine, train, yard or hostling service, and admitting to membership employees engaged in any of said services. Nothing in this agreement shall prevent an employee from changing membership in one organization to another of his choice. 4. Employees holding seniority rights in any classes or crafts represented by the Brotherhood shall not be subject to provisions of this agreement as long as they are assigned to official positions with the Company, or when on leave of absence, or on furlough, or injured or sick or in retirement under the provisions of the Railroad Retirement Act; and their seniority shall continue to accumulate during such absence from actual duty, provided that immediately upon return to service or exercising such seniority rights as they may hold, such employees shall comply with the provisions of the preceding paragraphs. 5. No employee will be discharged under provisions of this agreement without the benefit of proper investigation and representation, if he desires and requests same in writing to Division Superintendents. Responsibility for initiating action to enforce provisions of this agreement shall rest with the Brotherhood and be progressed through normal discipline procedure as provided by Article 31 of the Firemen's Agreement. 6. The Brotherhood shall indemnify, defend, and save harmless the Company from any and all claims, demands, liability, losses or damages resulting from the making and/or complying with this agreement. This agreement shall remain in effect subject to the provisions of the Railway Labor Act, as amended."
The case was removed to the Federal court, but later remanded to the State court. During the time the case was pending in the Federal court, depositions were taken under the Federal rules. After the case was remanded to the superior court, the parties to this case entered into a stipulation whereby the depositions, taken under the Federal Rules of Civil Procedure, "may be used in evidence in this matter to the same extent as had said depositions been taken pursuant to proper notice under the 1959 Act of Georgia, Page 425, et seq." Thereafter, each defendant filed a motion for a summary judgment, and upon a hearing, the trial court sustained each motion. The ruling on each motion is assigned as error by the plaintiff in this appeal.
1. "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, 101 Ga. App. 683, 684 ( 115 S.E.2d 403). See also Scales v. Peevy, 103 Ga. App. 42 ( 118 S.E.2d 193).
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., 177 F. Supp. 186. The defendant Railway Company filed a motion for summary judgment upon the ground that it discharged the plaintiff in accordance with the provisions of the Union Shop Agreement. The defendant Brotherhood moved for a summary judgment in its behalf without specifying any ground. Attached to the respective defendants' motions are affidavits of certain Brotherhood officials and Railway Company employees. The depositions of the plaintiff and an agent of the Railway Company taken in the Federal court and by stipulation placed in the proceedings in the trial court (expressly so by the separate motions for a summary judgment) make a very clear issue of fact, in that, Section 4 of the Union Shop Agreement provides: "Employees . . . shall not be subject to provisions of this agreement . . . when on leave of absence. . ." The plaintiff testified by deposition that he sought and obtained a leave of absence in the customary manner and procedure between the railway company and its employees for a 30-day leave of absence beginning June 17, 1955. (The discharge was made effective on July 5, 1955). The deposition of the defendant railway company's agent supported the plaintiff's testimony concerning the method of obtaining such leave, but disputed the fact of whether the plaintiff had obtained such leave.
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.
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.
2. In the briefs of counsel for the Brotherhood the contention is made that Article 30 of the Firemen's Agreement 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 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.
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., 96 Ga. App. 39 ( 99 S.E.2d 349); Woodall v. Hartford Fire Ins. Co., 33 Ga. App. 694 ( 128 S.E. 69); Sammons v. Nabers, 186 Ga. 161 ( 197 S.E. 284). However, the plaintiff's petition does not show the provisions of Article 30 of the Firemen's Agreement. Therefore, the plaintiff's petition does not show a contractual limitation barring his right to bring the present suit at the time it was filed. While the instant case is not here on demurrer, we feel the above authority is important to show that if the contractual limitation is applicable and germane, the defendants must allege and prove it as a defense. In the instant case the defendants did not set up such a defense in their answers. Neither defendant alleged a contractual limitation as a ground for summary judgment. While the Firemen's Agreement was placed in the record by being attached as an exhibit to one of the affidavits filed by the Brotherhood, such affidavits and exhibits serve only as evidence, when relevant and admissible, in support of a proper ground of a motion for summary judgment and not as a substitute for such ground. The purpose of specifying a ground of a motion is to acquaint the opposite party with the basis upon which the motion is sought. A party against whom summary judgment is sought should be apprised of the grounds of such motion in order that he may be prepared at the hearing to oppose the same. Accordingly, as neither of the motions specifies a contractual limitation barring the present action as a ground for summary judgment, there is no question regarding such limitation before this court.
Judgment reversed. Townsend, P. J., Carlisle and Jordan, JJ., concur.