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Complaint for salary; from Albany City Court-- Judge Clayton Jones. October 10, 1949.
1. Under the facts pleaded in the defendant's answer, it was a jury question as to whether the plaintiff had waived the formal prerequisites to his discharge by the City of Albany, and was thus estopped to claim any salary after the date of such alleged illegal discharge, and the trial court erred in sustaining the demurrers to and in striking those portions of the answer pleading waiver and estoppel.
2. The equitable doctrine of laches not being applicable to suits at law, the court did not err in striking the portions of the answer setting up that defense.
3. The court erred in striking the portion of the answer which pleaded that the plaintiff had resigned.
4. No ruling is made on the exception to the overruling of the motion for new trial.
5. It was not proper to strike the answer or portions thereof on the ground that it was contradictory or set up inconsistent defenses.
R. F. Mitchell sued the City of Albany and alleged substantially the following facts: that the plaintiff was re-elected by the Board of City Commissioners of the City of Albany, on the second Monday in January, 1948, as a member of the fire department of the city for a term of two years from that date, the said re-election being made under certain charter provisions; that thereafter the plaintiff worked as a fireman until July 6, 1948, when he was illegally discharged by the chief of the fire department in conjunction with the fire committee of the city; that said discharge was effective on July 16, 1948; that his term as fireman was fixed by the charter of the City of Albany, that it had not expired, and that his discharge from his duties was without legal authority, and that he has ever since been ready and willing to perform his duties as fireman. The plaintiff then alleged that certain procedural formalities necessary under the charter provisions of the City of Albany had not been complied with in discharging him and that for this reason his discharge was illegal and void. He alleged that no charges were preferred against him by the chief of the fire department, or by anyone else; that no just cause for his removal was shown before a proper tribunal empowered by law to consider the same; that no public hearing was had, and that he has not been discharged or removed by a majority vote of the City Commissioners of Albany as required by the city charter; that the defendant has illegally declined to pay him his salary since July 16, 1948; that the plaintiff, on April 14, 1949, presented the Board of City Commissioners of Albany, Georgia, with a claim and demand, a copy of which was attached and made a part of the petition, and that said claim was denied by the defendant in an open and regular meeting of the Board of City Commissioners on May 10, 1949. He further alleged that the defendant was indebted to him in the sum of $1925.45, which sum was his computed salary plus interest at 7% per annum, from July 17, 1948, to March 22, 1949, when the plaintiff voluntarily resigned his job as city fireman before the Board of City Commissioners of Albany in an open meeting.
The defendant filed an answer in which it (par. 2) admitted that the plaintiff had been re-elected as fireman on the second Monday in January, 1948, but denied (par. 3) that the plaintiff had performed his duties as such or that he had been illegally discharged by the chief of the fire department, or without the proper procedural requirements having been complied with, and denied that the plaintiff was ready, willing and able to perform his duties as fireman. The defendant alleged in its answer (par. 4) that the plaintiff was physically unable to perform his duties as a fireman because of enumerated physical weaknesses and diseases, and that the plaintiff had been guilty of acts of insubordination and disrespect toward his superior officers. The defendant denied (par. 5) that the procedural method outlined in the plaintiff's petition had to be followed in order to discharge the plaintiff. The defendant denied the plaintiff's allegations that no charges had been preferred against him or that no public hearing had been had; and the defendant alleged (par. 6) that because of the plaintiff's physical condition the chief of the fire department recommended to the fire committee of the City of Albany that the plaintiff be dismissed and that in accordance with this committee's action the chief personally handed the plaintiff a letter specifying the charges against him and advising him of his dismissal. It was further alleged that the chief at that time advised the plaintiff of his rights respecting a public hearing but that the plaintiff orally declined a hearing and said "I quit," and thus resigned his office, turned in his uniform and insignia of office, and by this action acquiesced in his dismissal, and that from July 6, 1948, until March 8, 1949, the plaintiff "did not mention the matter to any official of the City of Albany, made no demand for re-instatement, and made no demand for his salary." The defendant denied (par. 8) that it had illegally withheld the plaintiff's salary after July 16, 1948, admitted that the plaintiff had made a demand upon it for his salary to March 8, 1949, which was rejected by the defendant, and alleged that on March 8 the plaintiff was given a public hearing on his application for re-instatement, at which, after the city had put in its evidence, the plaintiff in open meeting stated that he withdrew his request for re-instatement, and resigned. The defendant further pleaded (par. 10) that on July 6, 1948, the plaintiff resigned his employment to the chief of the fire department who, under an ordinance of the city, a copy of which was attached as an exhibit to the petition, had authority to accept resignations, and who did accept the plaintiff's resignation, and that (par. 11) by reason of the plaintiff's action in resigning, and turning in his uniform and insignia and by his silence and failure to make a demand for over 8 months, the plaintiff waived his right to a hearing before the Board of City Commissioners, and is now estopped to claim a salary after July 16, 1948, and that in so delaying his demand he is guilty of laches, and the defendant alleged that except for the plaintiff's action in stating specifically that he did not want a hear-
ing and that he quit, the defendant would have preferred charges against him.
The plaintiff demurred to certain paragraphs of the defendant's answer setting up the affirmative defenses and the trial court sustained some of the demurrers, striking portions of the answer, the effect of which was to leave the defendant with nothing in its answer but a general denial of the allegations of the plaintiff's petition. To this order the defendant excepted pendente lite. The case proceeded to trial, the plaintiff put in his evidence, and thereafter, the defendant offered to introduce evidence of facts substantially the same as those pleaded in the stricken portions of the answer. The court ruled that it would exclude such evidence because "Chief Brosnan was not the proper authority to resign to, under the code of the city," and thereafter directed a verdict for the plaintiff in the amount sued for. The defendant moved for a new trial on the general grounds, and amended the motion by the addition of 6 special grounds and excepting therein to the order directing the verdict. The motion was overruled and the defendant filed its bill of exceptions to this court assigning error on the order overruling the motion for new trial and on the exceptions pendente lite.
1. Counsel for the plaintiff in error state in their brief that only three main issues are involved in this case, and for convenience the case will be discussed on the basis of this assumption, for we believe that a solution of these three issues will solve the real questions raised by the pleadings and the exceptions to the rulings there on. The first issue, as stated, is, "Did Mitchell waive his right to a trial before the Board of City Commissioners? The defendant in error counters this statement of the issue with the contention that he could not waive the rights guaranteed him by the charter of the City of Albany which provides, in conjunction with certain enabling ordinances of the city, a procedure to be followed in the discharge of employees of the class of which the plaintiff is a member, their contention being that if the plaintiff could waive any such provisions of the law he could only do so after formal specifications of charges against him had been filed with the city clerk, and in this connection they cite City Council of Augusta v. Bowers, 54 Ga. App. 115 (187 S. E. 264).
We think that under the facts of this case the defendant was entitled to plead a waiver by the plaintiff of the rights granted him by the charter of the City of Albany, and by the ordinances of the city and that the city was entitled to have such question considered and passed upon by a jury. "Laws made for the preservation of public order or good morals cannot be done away with or abrogated by any agreement; but a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest." Code, 102-106. " 'Waiver is a voluntary relinquishment of some known right, benefit or advantage, which except for such waiver, the party otherwise would have enjoyed.' " Kennedy v. Manry, 6 Ga. App. 816, 819 (66 S. E. 29), and citations; Gray Lumber Co. v. Harris, 8 Ga. App. 70, 76 (68 S. E. 749); Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (1) (72 S. E. 295); Plumer v. Continental Casualty Co., 12 Ga. App. 594 (77 S. E. 917). The question of whether one has waived a right upon which he relies is a matter of fact to be determined by a jury or the trior of the facts upon all the evidence.
That such rights as are asserted here by the plaintiff may be waived is, we think, shown by the case of Barfield v. Atlanta, 53 Ga. App. 862 (187 S. E. 407), where it appeared that the plaintiff suing the city for a portion of his wages which had been withheld prior to his leaving the employ of the city, had signed an agreement to accept as a monthly salary a sum less than that provided by an ordinance fixing the salaries of firemen, and accepted pay for a period of several months thereafter signing a statement each month that "any deductions from the full amount due are made in accordance with the payee's written request," and it was held that the written acknowledgment by the plaintiff that his pay checks were in full settlement of the salary due him, and that the statement above quoted constituted a waiver, and the court concluded that this ruling was more particularly applicable because of 102-106 of the Code (quoted above), and that the agreement which the plaintiff signed was not adverse to the public interest, or in violation of public policy. And again, in Burney v. Boston, 24 Ga. App. 7 (7) (100 S. E. 28), a suit by an official of the town of Boston claiming that he had been illegally removed from office, we find a clear acknowledgment of the power of one who has thus been removed from office, to waive formal or procedural requisites so far as such removal goes, in the following language: "In such a case [one involving an action taken by the governing authorities of a city to suspend or discharge an official] the official who by virtue of the exercise of the ministerial powers of the governing authorities has thus been summarily suspended or discharged, not being concluded, is authorized in this State, unless such right has been waived, to bring his suit against the municipality for his wages or salary, without first having been reinstated." (Italics ours.)
In Johnson v. Johnson, 52 Ga. 450, the court said, "We do not mean to say that a man can, by agreement, agree to any other service of a writ than that required by law. But we do say that if he does so, and others act on the agreement so that they will be damaged if it be repudiated, the party making the agreement cannot deny its legal effect. Here, if the sheriff tells the truth, the defendant deliberately misled him, and it is asked that a court shall aid that defendant to make his fraud effective. If this defense is successful, the sheriff will be liable for a false return, and that because he trusted and acted upon the plain, deliberate, and well understood, consent of the defendant to accept the service as complete. It does not meet the issue to say that the service is not such as is required by law. It is often the case that men act so as that they cannot insist on the rules of law. The law requires title to land to be passed only by writing, and yet if one, by his act or words, induce another to buy his land as the land of a third person, it will be vain for him to plead that he did not put his pen to paper. A man shall not take advantage of his own wrong. The courts will not permit themselves to be the means of perpetrating a fraud. If this sheriff tells the truth, the act of the defendant, in insisting on a service in terms of the law, is a shameful breach of his own word, upon which the sheriff has in good faith acted, and it would be a gross wrong to the sheriff to permit its consummation." We think that these rules of law are controlling in principle, as to the first question raised by the statement of the issues, and that it was a question for the jury to say whether the plaintiff had waived his right to a formal trial before the Board of City Commissioners, and that under these principles of law the trial judge erred in sustaining the demurrers and in striking those portions of the defendant's answer which plead facts tending to show that the plaintiff had waived such rights as might have been guaranteed to him by statute or by a city ordinance.
The case of City Council of Augusta v. Bowers, 54 Ga. App. 115 (2), 116, 117 (187 S. E. 264), relied on by the defendant in error, is distinguishable upon its facts from the case at bar. In that case the employee was informed that he was discharged, he left his job, said nothing and did nothing about it until he brought his action for his wages. In the instant case the allegations of the answer showed that the plaintiff was expressly advised when he was handed the letter discharging him, of his rights respecting a hearing, and that he stated that he didn't want a hearing and that he quit, resigned and turned in his uniform. We think that the defendant was entitled to submit evidence of these facts to the jury and to have the jury pass upon the question of waiver. Furthermore, we think that the allegations of the answer respecting the plaintiff's application for "reinstatement" also tended to show a waiver of the formal prerequisites of his discharge. If the plaintiff applied for "re-instatement," did this not indicate that he recognized that he had in fact been discharged? All of these allegations tending to show a waiver by the plaintiff were matters properly pleadable by the defendant and the trial court erred in striking on demurrer paragraphs 4, 6, 8 and 11 of the answer.
2. The next issue raised by the case, as stated by counsel for the plaintiff in error is, "Is Mitchell barred by reason of laches or is he estopped?" As to the question of estoppel, we think that the ruling in the first division above answers this contention. As to laches, this was an action at law for wages allegedly due the plaintiff. It is well established in this State that the equitable doctrine of stale demands is not applicable to suits at law. Louther v. Tift, 20 Ga. App. 309 (2) (93 S. E. 70); Wood v. City Board of Plumbing Examiners, 192 Ga. 415 (15 S. E. 2d, 486); Fletcher v. Gillespie, 201 Ga. 377 (2), 385 (40 S. E. 2d, 45). For this reason the trial court did not err in sustaining the demurrer to paragraph 12 of the answer and in striking that paragraph.
4. In view of what is said in divisions one and three of this opinion, all that occurred on the trial of the case after the court's ruling on the demurrers to the answer was nugatory, and no ruling is made as to the exception to the overruling of the motion for new trial.
5. The defendant in error argues that the defendant's answer contains admissions which conflict with the denials and affirmative facts pleaded therein. Considering the answer as a whole, and in its proper light, we do not think that this conclusion necessarily follows. "No part of an answer shall be stricken out or rejected on account of being contradictory to another part of the same, but the court shall suffer the whole answer to remain, if the defendant should desire it, and avail himself of any advantage he can or may have under either or the whole of said answer, and proceed to trial accordingly." Code, 81-310. Rigden v. Jordan & Stewart, 81 Ga. 668 (2), 671 (7 S. E. 857); Jones v. Forehand, 89 Ga. 520 (1), 522 (16 S. E. 262); Wade v. Watson, 129 Ga. 614 (2), 618 (59 S. B. 294); Mendel v. Miller & Sons, 134 Ga. 610 (2) (68 S. E. 430); Hadden v. Fuqua, 194 Ga. 621, 633 (22 S. E. 2d, 377); Associated Mutuals Inc. v. Pope Lumber Co., 200 Ga. 487, 490 (37 S. E. 2d, 393); Watkins Co. v. Ellington, 70 Ga. App. 722, 728 (29 S. E. 2d, 300). As we interpret she answer, the defendant pleaded first that if it had discharged the plaintiff, he had, by his subsequent conduct, waived any rights he might have had with regard to procedural formalities in the matter, and secondly, that they did not discharge him, but that he resigned or quit when he learned of the charges against him, and thus refused to have a hearing regarding these charges. The mere fact that these defenses were inconsistent was not, under the authorities cited, sufficient grounds, in itself, for striking these portions of the plea.
The court therefore erred in sustaining the demurrers to the answer and in striking those portions of the answer relating to waiver and resignation, and all that transpired thereafter was nugatory.
George L. Sabados, contra.
Adie N. Durden, H. S. Raines, for plaintiff in error.
Saturday May 23 05:51 EDT

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