Brantley v. Heller

112 S.E.2d 685, 101 Ga. App. 16, 1960 Ga. App. LEXIS 772
Court of Appeals of Georgia·Decided January 14, 1960·No. 37988, 37998·Published·Cited by 16 cases

Opinion

Nichols, Judge.

1. The plaintiff’s motion to dismiss the defendants’ motion for summary judgment was as follows: “Comes now plaintiff and moves the court to strike motion of defendant for summary judgment and affidavit of Ben T. Huiet, and for grounds thereof saith: 1. Alleged facte stated therein are not made on personal knowledge of Ben T. Huiet, the affiant. 2. Alleged facts set forth would not be admissible in evidence. 3. Said affiant Huiet is not competent to testify to matters stated therein, and same have no probative value. 4. Alleged facts in said affidavit contain merely conclusions of law and fact, of the affiant Huiet. 5. Said Form 401, separation notice, mentioned in said affidavit, attempts to prescribe and promulgate certain laws, rules, and regulations of Department of Labor, as provided by the Employment Security Laws of Georgia, of 1937, and seeks to permit Department of Labor to legislate, and said Acts are unconstitutional, as General Assembly of *18 Georgia cannot delegate the power to legislate to any person. 6. Said Form 401, separation notice, mentioned in said affidavit, attempts to prescribe certain grounds upon which an employee can be discharged, but none of those grounds are set forth in the Form 401, discharging plaintiff, (exhibit ‘A’, to plaintiff’s petition). Wherefore, plaintiff moves the court to dismiss said motion and affidavit thereto attached.”

Grounds 1 through 4 of the plaintiff’s motion to dismiss the motion for summary judgment attack the whole affidavit attached to the motion for summary judgment. While some parts of the affidavit may be subject to the attacks made, lall of the affidavit is not so subject. “It is not error to admit evidence which is objected to as a whole when any part of that objected to is admissible. A party objecting to evidence must specify the portion which is objectionable, and if he fails to point out exactly that portion which is objectionable and move its exclusion he cannot complain that the whole of the evidence objected to, a part of which was admissible, was admitted over his objection. This ground of the motion shows no error. Gully v. State, 116 Ga. 527 (2) (42 S. E. 790).” Turner v. McKee, 97 Ga. App. 531, 536 (103 S. E. 2d 658). Accordingly, the trial court did not err in overruling grounds 1 through 4 of the motion to dismiss the motion for summary judgment.

(a) In the case of Richmond Concrete Products Co. v. Ward, 212 Ga. 773, 774 (95 S. E. 2d 677), the Supreme Court held: “In order to raise a question as to the constitutionality of a ‘law’, at least three things must be shown: (1) the statute or the particular part or parts of the statute which the party would challenge must be stated or pointed out with fair precision; (2) the provision of the Constitution, which it is claimed has been violated must be clearly designated; and (3) it must be shown wherein the statute, or some designated part of it, violates such constitutional provision. Stegall v. Southwest Georgia Regional Authority, 197 Ga. 571, 582 (30 S. E. 2d 196), and cases there cited.” The Supreme Court then held, that although the trial court had declared the'statute unconstitutional, that no constitutional question was raised and that the Court of Appeals had jurisdiction of the writ of error. The attack on the statute con *19 tained in paragraph 5 of the plaintiff’s motion to dismiss the motion for summary judgment was insufficient to raise a constitutional question and was, under the holding of the Supreme Court in the Ward case supra, properly overruled by the trial court.

(6) The sole remaining question for decision by this court, as to the motion to dismiss the motion for summary judgment (ground 6 thereof), is without merit, for the separation notice required the employer to “state reason for [employees’] quitting,” and the statement alleged to be libelous stated why the plaintiff had “quit” or “resigned” his job.

2. The sole remaining question for decision by this court on the main bill of exceptions is whether the trial court erred in granting the defendants’ motion for summary judgment.

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Brantley v. Heller, 112 S.E.2d 685, 101 Ga. App. 16, 1960 Ga. App. LEXIS 772 (Ga. Ct. App. 1960).

112 S.E.2d 685 (Brantley v. Heller) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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