The defendant-appellant, Apex Concrete Co., hereinafter referred to as Apex, appeals from an adverse decision in the superior court granting the plaintiff-appellee, Max Bray, judgment in the sum of $3,056.04 on a salary claim.
The appellant conducts a summer and early fall concrete business at Anchorage, and on May 31, 1960, hired the appellee as office manager and dispatcher for its business at an agreed salary of $600 per month. Bray testified at the trial, and the trial court so found, that late in December 1960 or early in January 1961 he entered into a further agreement with one Fred Wheeler, who was then president and general manager of Apex. Under this latter agreement Bray's monthly salary was to be increased by $200 commencing January 1, 1961, but payment of the additional salary was not to be made until Apex got into the full swing of its 1961 summer operation and could put itself in a stronger financial position.
No payments for the added remuneration claimed by Bray had been paid by Apex through April 30, 1962. Early in May 1962 Wheeler negotiated a sale of his interest
On the day before Wheeler transferred his interest to Flood, Bray prepared an Apex paycheck to himself for the first half of May. The check was reckoned on a salary of $800 per month and was signed by Wheeler. A similar check covering Bray's salary for the last half of May, at $800 per month, was signed by Flood and issued to Bray on June 1, 1962. Flood testified that it had been resolved between Wheeler and himself, before the transfer of interest in Apex, that there was no basis for Bray's extra salary claim listed with the accounts payable. He also testified that he did not discover until about the end of the first week in June that Bray had been paid for May more than his regular salary at $600.
It appears that, even though Flood disclaimed any liability for the Bray back salary account and refused to pay him more than $600 per month, he did request him to stay on with Apex for a short time to train the man who was to replace him. In the meantime Bray had filed this action for recovery of the additional salary alleged to be due him, and Flood told him to add his claim for June salary to the pending action. Bray terminated his employment with Apex on June 24, 1962.
Ray Stithem, who owns forty-five per cent of the stock of Apex and is its secretary-treasurer, testified that the quality of Bray's work did not warrant a $200 increase in his salary and that Bray spent some of Apex's time attending to personal business dealings of Wheeler in scrap metal and the sale of sacked cement to Apex and others. The purpose of this testimony concerning work performed by Bray for Wheeler personally seems to have been to lay a basis for the allegations of Apex in a third party complaint against Wheeler and another enterprise of his, U.S. Alaska Corporation, that whatever salary might be found owing to Bray should have to be paid by Wheeler or U.S. Alaska Corporation.
One of the issues raised by Apex is that the trial judge should have disqualified himself from trying the case, because the following statement contained in his pretrial order indicates that he had prejudged the case:
This excerpt from the record standing alone might lead one to believe that the trial judge had precluded himself from impartially determining a basic issue in the case, namely, whether Apex had agreed to raise Bray's salary to $800 per month either before or after Wheeler sold out. Reading on further in the record, however, we find that the trial judge made it quite clear that he never had any intention to prejudge the case.
At the commencement of the trial, counsel for Apex filed written objections to the subject statement contained in the pretrial order. He concluded his objections with this suggestion and request:
We regard the foregoing written remarks of counsel as an invitation to the trial judge
Again in a memorandum opinion delivered at the conclusion of all the evidence the trial judge reaffirmed his conception of the primary issue involved in the case when he stated:
We find no error in the failure of the trial judge to disqualify himself to try the case. In this connection Apex has also interjected an argument in its brief that it was error for the trial court not to set aside the pretrial order for the reason that it did not properly reflect the contentions of the parties and order a new pretrial conference. This issue was not raised in the statement of points on appeal, nor is it mentioned in the specification of errors; therefore, we need not consider it.
Eleven of the thirteen errors specified by Apex are directed at findings alleged to have been made by the trial court. The first specification states merely that "the findings by the Trial Court are clearly erroneous." This charge of error is so general that it provides us with nothing meaningful to consider.
The twelfth specification of error charges that "the court erred in finding that there was not fraud
As for the remainder of the specifications of error relating to findings made by the trial court, none of them state with the particularity required by Supreme Court Rule 11(a) (6)
Apex also specifies as error the action of the trial court in dismissing the third party claim against Wheeler. At the conclusion of the evidence, counsel for the third party defendant Wheeler moved that the third party claim be dismissed as to his client. The trial court took the motion under advisement and ruled on it in its memorandum opinion as follows:
We find ample support in the record for what the trial court had to say on this issue and for its order dismissing the third party claim against Wheeler. Bray admitted that he did some work for Wheeler personally at the Apex office but stated that it was minimal in comparison with his work for Apex. Stithem, on the other hand, testified that Bray was doing considerable personal work for Wheeler, but on cross-examination admitted that he had never actually seen Bray doing work for Wheeler, and that his periods of observation were only on occasional visits to the Apex plant before eight o'clock in the morning, during the lunch hour, after working hours, or on Saturdays. We find that the trial court did not err in dismissing the third party claim against Wheeler.
"4. The Trial Court erred in finding that Wheeler consented to the back wages by acceptance of the list of accounts payable as of April 30, 1962."
"7. The Trial Court erred in finding that Mr. Ray Stithem consented to the increased wage."
"8. The court erred in finding that Bray requested Stithem to enter his claim on the books of Apex."
"3. The Judge erred in finding that Bray informed Wheeler that he could not continue to work at the rate of $600.00 per month, and that Wheeler agreed that Bray's salary would be $800.00 per month commencing January 1, 1961."
"5. The court clearly erred in finding that Bray was entitled to any back wages."
"6. The court erred in finding that Wheeler consented to the increase in salary by signing the check for the month of May 1 through 15, 1962."
"9. The court clearly erred in finding that the cash position of Apex was poor and unable to make the payments of Bray if, in fact, owed."
"10. The court erred in finding that there was consideration for the amounts claimed by Bray, and that the plaintiff fully performed his duties."
"13. The court erred in finding that Bray's wages for June 1 through 24, 1962, were to be [at the rate of] $800.00 per month."