Terry Shipbuilding Corp. v. Gregory

Per Curiam. 1. In this case the plaintiff sued for $100, alleged to be due as salary for a time extending from April 15, 1919, to May 1, 1919. The plaintiff contended, and adduced evidence to show, that he was employed by the defendant to Avork for it from October 14, 1918, to October 14, 1919, for a salary of $3,400 a year, his salary being paid semi-monthly, and that he was discharged and was paid nothing after April 15, 1919. The defendant contended that the contract of employment terminated on April 15, 1919, that the plaintiff had done no work for it since that date, and was due no pay. It pleaded also that the discharge [454] was justified, in that he had been employed to work in its shipyard upon representations by him that h° was perfectly competent to perform the duties to which he was assigned, whereas he proved to-be incompetent. It further pleaded that he was contentious, opinionated, egotistical, and incapable of working harmoniously with those around him; that he was shifted from one department to another, but manifested the same characteristics as before; that he fought with one employee, was so disagreeable that the head of the second department in which he worked resigned, and that he was such a source of discord among the other employees that it was necessary to discharge him. Though conflicting, the evidence was sufficient to sustain the plaintiff’s contentions, and this court cannot set aside the verdict. 2. The 4th ground of the amendment to the motion for a new trial, complaining of the admission of certain documentary evidence, cannot be considered, as the evidence is not set forth in the ground or attached to it as an exhibit. Carson v. State, 23 Ga. App. 535 (3) (98 S. E. 817). 3. Eefusal to permit a witness to testify as to a certain matter is not cause for a new trial where it is not shown what he would have testified or was expected to testify as to the matter if he had been allowed to do so, nor unless it appears that the party complaining of such refusal offered the testimony or asked that it be admitted, nor unless the court was informed of what it was proposed to prove by'the witness. It should appear that such testimony was material and would have benefited the complaining party. This court therefore will not consider grounds of the motion for a new trial in this case which complain that “the court erred in refusing to permit” a named witness “ to testify what kind of man he found the plaintiff to be, ” or “ to testify as to the impressions derived by him as to the plaintiff with respect to his employment, from information given him ” by a named person, and similar grounds which appear in the motion. See the opinion of Justice Lamar in Griffin v. Henderson, 117 Ga. 382 (43 S. E. 712). See also Morris v. State, 129 Ga. 434 (59 S. E. 223); Lowe v. Burden, 22 Ga. App. 679 (1) (97 S. E. 106); Carson v. State, 22 Ga. App. 744 (7), 745 (97 S. E. 202); Kimbrel v. State, 24 Ga. App. 696 (101 S. E. 920) . 4. The 11th ground' of the amendment to the motion for a [455] new trial is without merit, since the ruling therein complained of was in favor of the plaintiff. 5. The 12th ground of the amendment to the motion for a new trial is defective, because it complains of the admission in evidence of a certain letter, but the letter is not set forth in the ground or attached thereto as an exhibit. (a) The statement of the court made while ruling upon the admissibility of this evidence did not amount to an expression or intimation of an opinion as to what had been proved in the case. 6. In the absence of an appropriate request, it is not error to fail to explain to the jury the meaning of “the preponderance of the evidence. ” Seaboard Air-Line Ry. v. Randolph, 136 Ga. 505 (4) (71 S. E. 887). 7. The charge of the court substantially set out the contentions of the plaintiff in error as contained in its plea, and the assignment that it did not do so is without merit. 8. The charge was not subject to the criticism that it failed to apply the law to the particular facts in the case. 9. Viewing the charge as a whole, it was not objectionable because of failure to charge more fully what constituted a breach of a contract on the part of the defendant in error, there being no request for such instructions. 10. The charge of the court was full and fair, and not subject to any of the criticisms of it made in the motion for a new trial. For no reason assigned was it error to overrule the motion for a new trial. Judgment affirmed. Broyles, O. J., and Lulee and Bloodworth, JJ., concur.