Opinion
September 27, 1948.
1. Master and servant — discharge during month — wages recoverable.
Where an employee is hired by the month and has entered upon his duties, his discharge will not become effective until the end of the month so far as concerns his wages or salary for that month, — the discharge not being for cause.
2. Appeal — argument to jury — new trial.
In the absence of motion for mistrial and bill of exceptions, Supreme Court will not consider assignment of error raising point.
3. Appeal — error not harmful to appellant, no reversal for.
Although the trial judge failed to exclude irrelevant testimony, the judgment will not be reversed if the testimony was ineffecive or if effective was prejudicial only to the prevailing party and not to his opponent.
Headnotes as revised by Alexander, J.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, J.
B.F. Cameron, L.A. Pyle, Robt. E. Perry and George E. Shaw, for appellant.
The court committed reversible error in refusing to give the peremptory instruction which was requested by the defendant.
Contract of employment was an indefinite hiring terminable at the pleasure of either party without notice.
Rape v. Mobile O.R. Co., 136 Miss. 38, 100 So. 585, 35 A.L.R. 1422; Echols v. Railway Co., 52 Miss. 610; Lord v. Goldberg, 81 Cal. 596, 22 P. 1126, 15 Am. St. Rep. 82; McKelvey v. Choctaw Cotton Oil Co., 52 Okla. 81, 152 P. 414 Butler v. Smith Tharp, 35 Miss. 475; Shuber v. Corl, 39 Ca. App. 1951, 178 P. 535; Speeder Cycle Co. v. Teeter, 18 Ind. App. 474, 48 N.E. 595; Faulkner v. Des Moines Drug Co. (1902) 117 Iowa 120, 90 N.W. 585; Ross v. Fair, et al., 145 Miss. 18, 110 So. 841.
Plaintiff's theory of right to recover damages because of employment from month to month is not sustained by the law and evidence.
Yazoo and M.B.R. Co. v. Jones, 75 So. 550, 114 Miss. 787; Brooks, 111 So. 376, 145 Miss. 845; Hollister v. Frellsen, 114 So. 385, 148 Miss. 568.
A mere hiring at a specified sum per month was an indefinite hiring terminable at will, without notice and without liability for any damages.
The Pokanoket (1907) 84 C.C.A. 49, 156 Fed. 241; Thullen v. Triumph Electric Co. (1915) 142 C.C.A. 361, 227 Fed. 837; Warden v. Hinds (1908) 25 L.R.A. (N.S.) 529, 90 C.C.A. 449, 163 Fed. 201; Fahrenwald v. Ohio Steel Foundry Co. (1927) C.C.A. (6th) 16 F.2d 658; Greer v. Arlington Mills Mfg. Co. (1899) 1 Penn. 584, 43 A. 609; Fuchs v. Weibert (1924) 233 Ill. App. 536; Harrod v. Wineman (1910) 146 Iowa 718, 125 N.W. 812; Dysart v. Dawkins Log Mill Co. (1927) 222 Ky. 415, 300 S.W. 906; McCullough Iron Co. v. Carpenter (1887) 67 Md. 554, 11 A. 176; Evans v. St. Louis I.M. S.R. Co. (1886) 24 Mo. App. 114; Watson v. Gugino (1912) 204 N.Y. 535, 39 L.R.A. (N.S.) 1090, 98 N.E. 18, Ann. Cas. 1913 D, 215; Edwards v. Deaboard RR Co. (1897) 121 N.C. 490, 28 S.E. 137; Barlow v. Taylor Min. Co. (1896) 29 Or. 132, 44 P. 492; Weidman v. United Cigar Stores Co. (1909) 223 Pa. 160, 132 Am. St. Rep. 727, 72 A. 377; Title Ins. Co. v. Howell (1932) 158 Va. 713, 164 S.E. 387; Davidson v. Mackall-Paine Veneer Co. (1928) 149 Wn. 685, 271 P. 878; Reasener v. Watts, R. Co. (1913) 73 W. Va. 342, 51 L.R.A. (N.S.) 629, 80 S.E. 839; Kosloski v. Kelly (1904) 122 Wis. 665, 100 N.W. 1037; Standing v. Morosco (1919) Ca. App. 184 P. 954; Foster v. Atlas L. Ins. Co. (1932) 154 Okla. 30, 6 P.2d 805; Humphries v. Read Phosphate Co. (1924) 136 Miss. 819, 101 So. 785; Ross v. Fair, et al., 145 Miss. 18, 110 So. 841.
The court committed reversible error in granting to the plaintiff the following instruction to the jury, to-wit:
"The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence that he, the plaintiff, was employed by the defendant on a monthly basis and was paid for his services by the month, and while such employment was in effect he was discharged by the defendant after he entered upon their services for the month of December, 1946, then you will find for the plaintiff and assess his damages in such sum as will compensate him for his loss, if any, not to exceed One Thousand ($1,000.00) Dollars."
Warden v. Hinds, 25 L.R.A. (N.S.) 529, 90 C.C.A. 449, 163 Fed. 201; Lynch v. Eimer (1897) 24 Ill. App. 185.
The court committed reversible error in permitting counsel for the plaintiff to cross-examine defendant's witness or irrelevant, immaterial, and incompetent matters which had previously been excluded by the court.
Thompson v. State, 87 Miss. 758, 36 So. 389, 70 C.J. 626, Sec. 796; Commonwealth v. Roth, 71 Pa. Super. 71; J.W. Sanders Cotton Mill, Inc. v. Moody, 195 So. 683, 189 Miss. 284; 70 C.F. 642, Sec. 810 (15); Pierron v. Prudential Insurance Company of America, 65 Ohio App. 465, 30 N.E.2d 563, January 27, 1940.
It was error for the trial court to permit plaintiff to introduce testimony in rebuttal to irrelevant, immaterial and incompetent evidence which had been previously excluded by the court on examination in chief.
64 C.J. 155, Sec. 176; New Orleans N.E.R. Co. et al. v. Miles, et al., 197 Miss. 846, 20 So.2d 657; 39 Am. Jur. Page 81.
The verdict was against the overwhelming weight of the evidence, and the trial court erred in not granting a new trial for this reason.
This court can reverse and remand for a new trial de novo where the verdict is against the great weight of the evidence even though it should hold that the defendants were not entitled to a peremptory instruction.
Miss. Code 1942, Sec. 1537; Montgomery Ward and Co. v. Windham, 195 Miss. 848, 17 So.2d 208; Mobile and Ohio R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Fore v. Alabama and V. Ry. Co., 87 Miss. 211, 39 So. 493.
The evidence is overwhelming against plaintiff's theory that he was not given notice of termination of employment and consequently entitled to damages for wrongful discharge.
Beard et al. v. Williams, 161 So. 750, 172 Miss. 780; Montgomery Ward Co. v. Windham, 16 So.2d 622, 195 Miss. 848; Shelton et al. v. Underwood, 163 So. 828, 174 Miss. 169; Universal Truck Loading Co. v. Taylor, et al., 164 So. 903, 174 Miss. 353; Fore v. Illinois Central R. Co., 160 So. 903, 172 Miss. 451; Mobile and O.R. Co., et al. v. Bennett, 90 So. 113, 127 Miss. 413; White v. McCoy, 7 So.2d 886; Kress Co. v. Sharp, 126 So. 650, 156 Miss. 693, 68 A.L.R. 167; City of Meridian v. Akin, 10 So.2d 194, 193 Miss. 505; Jones v. Carter, 13 So.2d 623, 195 Miss. 182. Will S. Wells, for appellee.
Appellee relies, for the affirmance of the lower court's action and the sustaining of the judgment obtained by him in this cause, on the case of Ross vs. Fair, et al., 145 Miss. 18, 110 So. 841. In this case it was held by this Honorable Court that when one is employed and paid by the month and is discharged after he enters upon his employer's services for another month, the employer is liable for the damages sustained by him thereby, for loss of salary or compensation for the ensuing month.
The court in reversing and remanding the case used the following language: "Under the law, if appellant was employed and paid by the month, as he testified he was, and was discharged by appellees after he entered upon their service for another month, then appellees breached their contract with appellant, and are liable to him for the damages he suffered; and if they breached their contract to furnish him a house to live in while he was in their service, they would be liable to him for whatever damages he suffered on that account. We think the evidence made a square issue of fact whether appellant's contention is well founded or that of appellees. It was therefore a question for the jury."
In this case the evidence shows without dispute that appellee was employed by the calendar month and was paid by the month in May, June, July, August, September, October and November, 1946. The evidence further shows by the appellee's testimony and is not denied by any of the evidence of the appellant, that he, the appellee, entered into the discharge of his usual duties on the morning of December 2, 1946. The only question at issue as far as the evidence and proof is concerning is whether or not the appellee received notice prior to December 2, that he was discharged. This fact was in controversy in the trial of this case in the lower court and there was ample disputed evidence to warrant the court in submitting the question to the jury for a finding of fact.
Appellant based his motion to vacate the judgment and grant it a new trial, mainly on the argument of counsel for appellee to the jury, claiming that a part of the argument was based on certain evidence which had been excluded by the trial judge. There was no objection to the argument at the time it was made; no motion for a mistrial was made and counsel for appellant answered the argument in his jury argument, all of which is revealed by the record.
Appellee brought suit in the county court for $1000, representing salary alleged to be due him by appellant as its production superintendent for the month of December 1946. Judgment for such amount was entered upon the verdict of the jury. The circuit court affirmed and the cause comes to this Court upon the following assignments of error: (1) Refusal of peremptory instruction for the defendant; (2) the giving of an instruction for plaintiff; (3) the refusal to exclude certain testimony; and, (4) denial of a new trial.
It is undisputed that the parties reached an agreement whereby Zorn would be employed by appellant as its production superintendent at a salary of $1,000 per month, beginning May 1, 1946. Such salary was paid at the end of each respective month, up to and including November 1946.
The first day of December fell upon Sunday, and on the following day Zorn reported for work and engaged in some activities involving inspection and designing of patterns. About an hour and a half later, a representative of the appellant accosted him, and in effect told him that the employment was at an end.
The president of the appellant company testified, in corroboration of plaintiff, that the plaintiff "worked by the calendar month." The employment therefore was without question one from month to month. The defendant did not seek instructions upon the issue of justification for the discharge, and there is sharply presented the right of an employer to discharge an employee at will where the only consideration for the employment is the giving and receiving of services for a stipulated monthly wage.
It could be conceded that the employer may in such circumstances discharge his employee at any time. We examine only what may be the effective day of such discharge.
In our judgment, regardless of the multitude of cases which support the general rule of the right to discharge at pleasure, (Hn 1) where one who has been hired by the month and has entered upon his duties, his discharge may not become effective until the end of such month. Ross v. Fair, 145 Miss. 18, 110 So. 841. The cited case is strikingly parallel upon the facts, involving, as does the case at bar, the entry upon duties upon the first work day of a new month. A few authorities elsewhere deny the employee's right to pay for the rest of the month, but we are bound by our own holding. It is true that in Rape v. Mobile O. Ry. Co., 136 Miss. 38, 100 So. 585, 35 A.L.R. 1433, we held that such employment as is here involved was terminable at the pleasure of either party. But the employment was by the day, and for all the record shows the employee was paid for the day upon which he was discharged. In any event the issue was in such case restricted to the right to discharge, and whether there was a consideration beyond the right to work and the duty to pay the stipulated wage.
We lay down no rule other than that announced in Ross v. Fair, supra. It is true that the appellant's president sought to express personal dislike for appellee, and to give reasons therefor, based on hearsay. It was shown that appellee's services had failed of an expected advantage. Yet this case was submitted, not upon the issue of justification, but upon the factual issue whether appellant had prior to December first given Zorn notice to quit.
Upon this point the evidence is conflicting. Certainly, in view of the categorical denial by Zorn of any prior notice and the lack of certainty in the testimony of witnesses for appellant, we are unable to say with assurance that the verdict is against the overwhelming weight of the evidence. The finding of the jury, under proper instructions confined to this issue, must be allowed to stand.
During the testimony of appellant's president, he sought to explain his personal antipathy toward appellee. He was admittedly moved chiefly by reported statements of Zorn derogatory to this State and its people. Exception to this testimony was sustained, yet upon cross examination, plaintiff's counsel interrogated the witness with regard to his feelings and their basis. Such testimony was in turn objected to by appellant, and the trial court was in error in overruling the objection.
A motion for a new trial was based upon the procedural incident, and upon argument of appellee's counsel to the jury under which it was shown that such matters were adverted to by counsel for both parties.
(Hn 2) Since there is no bill of exceptions disclosing the fact of such argument or a ruling thereon by the trial judge, and no motion for a mistrial, we may consider only the refusal to exclude this testimony.
(Hn 3) We are of the opinion that the failure of the trial judge to exclude this testimony was either of no effect, or, if effective, was prejudicial to the plaintiff and not the defendant.
Affirmed.