Nassif v. Southern Wholesale, Inc.

HEDRICK, Chief Judge.

Plaintiff first assigns error to the trial court’s exclusion of certain evidence. The facts necessary to an understanding of this assignment of error are as follows:

Plaintiff was employed as general manager of defendant, a wholesale beer distributor. In March, 1981, plaintiffs employment by defendant was terminated. In his complaint, plaintiff alleged that defendant, acting through its president, Bob Beaty, agreed to *610provide plaintiff with weekly severance pay in the amount of $500 for twelve weeks, one-fourth of his previous year’s bonus (approximately $3,750), and the title to a 1980 Fleetwood Cadillac leased by the defendant and used by plaintiff for both personal and business activities. In exchange for defendant’s agreement to provide plaintiff with this “severance pay,” plaintiff agreed to resign from defendant’s employ. In his complaint plaintiff alleged that defendant breached the terms of this agreement by paying him $500 a week for only nine weeks, by terminating plaintiffs possession of the 1980 Fleetwood Cadillac after only twelve weeks, and by refusing to provide plaintiff with title to the car.

In its answer defendant admitted that it agreed to pay plaintiff $500 a week severance pay, but denied that the agreed upon period was twelve weeks, contending instead that it agreed to provide plaintiff with this sum for two months. Similarly, defendant asserted that plaintiff was told he might retain possession of the automobile for two months; defendant denied plaintiff s allegation that it agreed to give him title to the car. The evidence tended to show that the fair market value of the automobile in question was $12,000 at the time of the alleged agreement.

At trial plaintiff sought unsuccessfully to introduce evidence tending to show the following: In March, 1978, plaintiff had a birthday party, which was attended by Bob Beaty, defendant’s president. At this party Mr. Beaty presented defendant with the keys to a 1978 Sedan DeVille. The following Monday plaintiff encountered Mr. Beaty and thanked him again for the gift of the car. Plaintiff testified on voir dire that Mr. Beaty responded as follows: “Well, you understand it’s leased. . . . Use it as a company car and personal car and that after a couple of years, we’ll— you’ll have to pay $1.00 or $10.00, nominal fee and the car will be yours. You can give it to your wife to drive and we’ll give you another company car.” Plaintiff testified that, at Mr. Beaty’s suggestion, he later exchanged this car for the 1980 diesel Fleetwood Cadillac at issue in the present action. According to plaintiff, Mr. Beaty indicated that the gas-driven 1978 Sedan DeVille “was using a lot of gas,” and said, “If you get a Diesel and give it to your wife in a couple years. . . . The car will last you a long time and will operate a lot cheaper.” Like the 1978 Sedan DeVille, the 1980 Fleetwood was leased by defendant. At trial Judge Bur*611roughs refused to permit plaintiff to testify about any of the facts relating to the 1978 car.

Plaintiffs testimony before the jury was that he met with Mr. Beaty on 13 March 1981, at which time he was asked to resign. Plaintiff testified that he and Mr. Beaty discussed the terms of plaintiffs severance pay in some detail, and that, at the end of the conversation, Mr. Beaty said, “Of course, the car”; plaintiff responded by saying, “That’s the second time you give me the car.”

Plaintiff contends that the excluded evidence was relevant to his claim for the 1980 Fleetwood Cadillac because it tended to render more credible his contentions as to the disputed terms of the oral agreement between plaintiff and defendant. We agree. The jury’s determination of the disputed terms of the oral agreement hinged on the credibility of plaintiff and Mr. Beaty. The evidence plaintiff was allowed to present to the jury tended to show that plaintiff and Mr. Beaty discussed at some length severance pay amounting to approximately $9,750, and that Mr. Beaty thereafter, without discussion and in an off-handed manner, agreed to include property having a fair market value of $12,000. We believe plaintiffs testimony in this regard is far more credible when considered in light of the excluded evidence that plaintiff had previously been assured by defendant that he would eventually be given title to the car. Because we believe the erroneous exclusion of this evidence may well have been prejudicial to plaintiff, we hold that plaintiff is entitled to a new trial.

New trial.

Judge JOHNSON concurs in the opinion. Judge COZORT concurs.