Wood v. Southern Life & Health Ins. Co. , 19 La. App. 214 ( 1932 )

McGregor, j.

On or about August 5,1930, tbe plaintiff entered tbe employ of tbe defendant as a solicitor and collector. On August 23, 1930, tbe plaintiff’s salary was garnished in tbe bands of tbe defendant under a writ of fieri facias, in a suit styled O. M. Anthony v. H. H. Wood. When tbe borne office of tbe defendant, located in Birmingham, Ala., received notice of this garnishment, a telegram was sent to its manager in Shreveport apprising him of tbe fact and suggesting to him that it would be better to dispense with tbe services of tbe plaintiff. This telegram was received on Monday, August 25, and on tbe next day when plaintiff reported fox work it was called to bis attention. Plaintiff never worked any more after that date. He says that he was discharged, while tbe manager of tbe defendant’s office says be quit of bis own volition.

On August 30, 1930, the plaintiff addressed and delivered a letter to -the defendant, in which he made demand for all wages due him, stating in the letter that be had been discharged without legal notice or cause, and that bis wages were being withheld in violation of law. Because of the garnishment process having been served on it, the defendant did not comply with the demands of this letter, but held all funds due in its bands.

As a consequence of this refusal, the plaintiff filed this suit on October 20,1930, in which he set forth tbe fact and terms of bis employment and alleged that he had been discharged without lawful cause. He alleged that the defendant was due him two full weeks’ wages at the time of the alleged discharge, and that he bad then worked two days of another week. He claimed relief under Act No. 150 of 1920, and-asked for judgment for the sum due up to and including August 26, and at the same . rate per week from that date until he should be paid in full the amount due him.

In its answer the defendant admitted tbe fact and terms of the employment, and then alleged that it bad been made garnishee in a suit against the plaintiff, and that as a consequence it bad withheld all sums due the plaintiff,,- It then alleged that upon the advice of plaintiff’s attorneys it had paid to tbe plaintiff’s judgment creditor all sums due: on plaintiff’s wages except $20 due for tbe week beginning August 18, and tbe two days of the following week. It expressed a willingness to pay for the entire week of August 25, and also admitted owing $2 in addition, which, according to custom, had been deposited with it as a bond when plaintiff was employed. Defendant, therefore, made a judicial tender of and deposited in the registry of the court the sum of $42, plus $5.45,' tbe cost of court accrued up to tbe time of the tender and deposit. It is denied by tbe defendant that it bad discharged the plaintiff, but, on the contrary, it is alleged that hé hád quit the service of tbe delunlant voluntarily in order not to pay tbe garnishing creditor any further sums on the judgment. At the trial in the district court judgment was rendered in favor of the plaintiff for tbe amount tendered, with costs up to the time of judicial tender, with the proviso that all costs after that time be paid by the plaintiff. From that judgment the plaintiff has appealed.

There is no dispute concerning any of the facts of tbe case except as to whether the plaintiff , was discharged or whether he quit voluntarily. The trial judge, who saw all the Witnesses and beard them testify, believed and held that tbe plaintiff quit of his own accord. We see nothing in the evidence which would justify us even to raise a question as to this finding. As a matter of fact, a careful reading of the testimony convinces us that it is correct. That being true, it becomes unnecessary to discuss tbe testimony any further, for in their brief counsel for , the plaintiff argue that the sole question for determination is whether tbe plaintiff was “fired” or “quit.” We agree with the trial judge in his finding, and therefore hold that the judgment is correct.

For these reasons the judgment appealed from is affirmed, the cost of appeal to be paid by the plaintiff.