Harvey v. J. H. Harvey Co.

CARLEY, Justice.

Joseph H. Harvey III entered into an employment contract with the J. H. Harvey Company (Company) for a term expressly stated as the “earlier” of his 65th birthday or death. Alleging that the Company breached the agreement, he brought suit. The trial court granted partial summary judgment in favor of the Company, ruling that Harvey could only recover wages payable up to the time of trial. The Court of Appeals affirmed that holding. Harvey v. J. H. Harvey Co., 256 Ga. App. 333, 335 (1) (568 SE2d 553) (2002). We granted certiorari to review the affirmance of the trial court’s grant of partial summary judgment.

OCGA § 10-6-37 provides that, when an employment contract is “for a year,” and the employer wrongfully terminates the employee before the end of the term, the employee

may either sue immediately for any special injury from the breach of the contract, or, treating the contract as rescinded, may sue for the value of the services rendered, or he may wait until the expiration of the year and sue for and recover his entire wages.

Although expressed in terms of agreements “for a year,” the statute nevertheless applies to all employment contracts for any definite duration, as opposed to those terminable at will. See Inter-Southern Life Ins. Co. v. Wilkinson, 147 Ga. 283, 284 (93 SE 406) (1917). See also Citizens Bank of Adrian v. Southern Securities and Financing Co., 143 Ga. 101 (84 SE 465) (1915) (five-year contract); Rosenstock v. Congregation Agudath Achim, 118 Ga. App. 443 (164 SE2d 283) (1968) (three-year contract); Georgia, Fla. & Ala. R. Co. v. Parsons, 12 Ga. App. 180 (76 SE 1063) (1913) (nine-and-one-half month contract). Thus, the election of remedies codified in OCGA § 10-6-37 “is applicable whether the contract of employment is for one year or less or for a longer term. [Cits.]” Rosenstock v. Congregation Agudath Achim, supra at 444.

By affirming the contract rather than rescinding it, Harvey rejected his option to seek recovery under a quantum meruit theory. Compare Silverthorne v. Arkansas Southeastern R. Co., 142 Ga. 194, 195 (1) (82 SE 551) (1914). Likewise, he has not elected to pursue the “constructive service” remedy, whereby he would wait until the expiration of each contractual period and sue for his wages. See Cox, Hill & Thompson v. Bearden, 84 Ga. 304, 306 (1) (10 SE 627) (1890).

Instead, he has elected to affirm the contract and bring an immediate suit for damages based upon the Company’s alleged breach thereof. Under this option, he has the right “ ‘to prove, and to recover for, all damages which may have accrued up to the date of the trial! ” (Emphasis supplied.) Georgia, Fla. & Ala. R. Co. v. Parsons, supra at 183 (2). See also Sandt v. Mason, 208 Ga. 541, 546 (2) (67 SE2d 767) (1951); Roberts v. Rigden, 81 Ga. 440, 443 (1) (7 SE 742) (1888); Roberts v. Crowley, 81 Ga. 429, 439 (3) (7 SE 740) (1888). Limiting the discharged employee’s recovery to such damages as have accrued at the time of trial is a minority rule which has been criticized by the commentators. See Anno., 91 ALR2d 682 (1963); 11 Williston on Contracts, § 1361A, pp. 318-319 (3d ed. 1968). However, the same is also true with regard to the “constructive service” remedy. See Cox, Hill & Thompson v. Bearden, supra at 306-307 (1); 11 Williston, supra at § 1361, p. 315. It is readily apparent that these two disfavored options are indispensable corollaries. If a wrongfully discharged employee could bring an immediate suit for damages and recover all future wages, then the “constructive service” remedy, which provides that wages can be recovered at the expiration of the contractual period, would be meaningless. Thus, the employee must elect between waiting to recover wages after he otherwise would have earned them, or suing immediately to recover the wages that he has lost and such other damages as he has suffered up to the time of trial. He may not bring suit and recover for future wages. The reason for this rule is that, until the contractual term has elapsed, the employee’s damages are too uncertain and speculative. Roberts v. Rigden, supra at 443 (1) (“Before the year expired [the damages] were, in part, only probable, and if the trial had taken place during the year, the whole damage would not have been capable of proof.”). See also, Anno., supra at § 3, p. 694.

Even if the “constructive service” remedy is out of favor, the courts of this state are not at liberty to dispense with it, because of its codification in OCGA § 10-6-37. See Cox, Hill & Thompson v. Bearden, supra at 306-307 (1). Likewise, we cannot now abandon the long-standing rule established by our case law that, as a necessary consequence of that statutorily mandated option, an employee who seeks immediate damages cannot recover his future wages.

“ ‘[0]nce the court interprets the statute, “the interpretation . . . has become an integral part of the statute.” (Cits.) This having been done, (over a long period of history) any subsequent “reinterpretation” would be no different in effect from a judicial alteration of language that the General Assembly itself placed in the statute. . . .’ [Cit.]” [Cit.]

Abernathy v. City of Albany, 269 Ga. 88, 89 (495 SE2d 13) (1998). If OCGA § 10-6-37 is to be revised so as to eliminate the “constructive service” remedy and to authorize, instead, a present recovery of future earnings, the General Assembly, rather than the courts, must take that action. The Court of Appeals correctly held that “[t]he contract at issue is severable and not entire, and Harvey . . . may sue for each breach without waiting until the end of the term, which, in this case, is uncertain. [Cits.]” Harvey v. J. H. Harvey Co., supra at 339 (1). However, his recoverable damages in this and in all successive suits will be limited to those which have accrued up to the time of each trial.

Judgment affirmed.

All the Justices concur, except Fletcher, C.'J., and Sears, P. J., who dissent.