Alabama Mills, Inc. v. Smith, 6 Div. 450.

• Decision Date: 16 February 1939
• Docket Number: 6 Div. 450.
• Citation: 237 Ala. 296,186 So. 699
• Parties: ALABAMA MILLS, INC., v SMITH.
• Court: Alabama Supreme Court

186 So. 699

237 Ala. 296

ALABAMA MILLS, INC., v SMITH.

6 Div. 450.

Supreme Court of Alabama

February 16, 1939

Appeal from Circuit Court, Jefferson County; G. R. Harsh, Special Judge.

Action for breach of contract of employment by Charlie E. Smith against Alabama Mills, Incorporated. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

Martin Turner & McWhorter and J. C. Blakey, all of Birmingham, for appellant.

Taylor & Higgins and Waldrop Windham, all of Birmingham, for appellee.

FOSTER Justice.

Appellee sued appellant, and recovered a judgment for a sum equal to the amount stipulated as his anticipated earnings under an alleged contract of employment for the time from his discharge until the suit was begun.

The question first of all is whether he had such a contract as to justify the claim. Plaintiff was a mechanic residing in Birmingham and had been employed on several occasions by defendant for services at its mill at Jasper. On those former occasions he was employed for a stipulated period of time and then released. In June 1935, he had employment provided by the Department of Public Works earning about seven dollars per week. This is some public welfare agency to aid unemployed and had no contract with them. His version of his contract with a representative of defendant is shown by the following extracts:

"The first thing he said when he came out, he asked me if I had a job. I told him yes, I was working for the D. P. W. as a roofer, getting a dollar an hour for what few hours I worked, I didn't get many hours, about seven a week. He told me he had a regular job for me. I told him I didn't think I wanted it. I told him I would work for him and the job may not last. He told me if I would go with him he would guarantee me a regular job just as long as I wanted a job with him. * * We talked awhile and he said 'I will give you 50¢ for the first two weeks if you will go, and after two weeks, I will raise you to 55.' We talked on a while and I accepted the job. There was no certain amount of hours mentioned, but we always worked 40 hours. *** I had a job with the Department of Public Welfare at the time Mr. Miller came out there. I had been with them a couple of months, ever since I had been laid off from the Alabama Mills; I went back on them. I worked for them along about March and was laid off. I quit my job with the Department of Public Welfare when I got that job with the Alabama Mills. When I accepted employment with them and quit my Public Welfare job I went to Jasper, Alabama. *** The day he fired me was on July 30, 1935. Mr. Miller fired me. That was the same man that hired me. And the same man that hired me every time I have been hired by this company. I performed my duties with the Alabama Mills under Mr. Miller, and I was doing work there as mechanic. * * During the time I was with the company, the last of May or first of June, up until the 30th of July, they paid me. They paid me at the rate of 50¢ an hour; $20 a week; 40 hours. I worked 40 hours a week. They never did give me a raise to 55. * *

"I don't know how the Department of Public Welfare is; I think it is the Government or State. Either State, City or County government. And it gives work and is supposed to give work to people that are unemployed. I never have signed a contract with the Department of Public Welfare. They just take me on and let me off as they please. My salary with the Department of Public Welfare was about $7.00 a week. To make it exactly, it was $6.90."

He worked five days a week, including Friday, and went home to Birmingham for Saturday and Sunday.

Since his services were terminated against his will and without assigning what the jury found was a sufficient reason, and since the jury accepted his version of the contract the question we have is whether it served to bind defendant for the period which the claim covered.

Defendant's version was to a different effect. But the jury settled that controversy, insofar as that trial was concerned.

Plaintiff did not work, as he testified, from the time he was discharged by defendant until he went to work for the W. P. A. about December 15th, after this suit was begun.

Appellant contends that a contract by which plaintiff should have the privilege of working for defendant at the stipulated amount of wages as long as he wanted to do so, was too indefinite to be operative, except for the services which were rendered and without mutuality; and if otherwise valid, though its terms are denied, as plaintiff contends they were, that they were made by one without sufficient authority to bind appellant to that extent.

With respect to the first contention, we will endeavor to find an exact meaning of such a contract as that stated in plaintiff's testimony. A leading case upon that subject is Carnig v. Carr, 167 Mass. 544, 46 N.E. 117, 35 L.R.A. 512, 57 Am.St.Rep. 488. It was said that what they meant by a permanent employment was so long as defendant was engaged in the same nature of business and needed the service of such an employee, and plaintiff was able and willing to do it satisfactorily and gave no cause for his discharge. So construed, it was said the contract was capable of enforcement. We have had occasion to consider contracts of a similar sort, but which differ in a material respect. Our case of Peacock v. Virginia-Carolina Chemical Co., 221 Ala. 680, 130 So. 411, Clark v. Ryan, 95 Ala. 406, 11 So. 22; National Life Ins. Co. v. Ferguson, 194 Ala. 658, 69 So. 823.

Undoubtedly a contract of employment which is in a true sense indefinite and without stipulation for an implied minimum period, is at the will of either party. 18 R.C.L. 508, section 19, and page 509, section 20; Howard v. East Tennessee, V. & G. R. Co., 91 Ala. 268, 8 So. 868; Arentz v. Morse Dry Dock & Repair Co., 249 N.Y. 439, 164 N.E. 342, 62 A.L.R. 231.

But if the terms of the employment are that the period of service shall be permanent, or as long as the employee wishes, the status is not so much that the service is for an indefinite period, but the question is whether the contract as made for a period of time to be fixed by the will of the employee is mutual in its operation and based upon a sufficient consideration. With respect to that situation, 18 R.C.L. 510, states the rule as follows: "Under some circumstances, however, 'permanent' employment will be held to contemplate a continuous engagement to endure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform the service satisfactorily. This seems to be the established rule in case the employee purchases the employment with a valuable consideration outside the services which he renders from day to day. Not infrequently contracts by railroad companies to furnish 'steady and permanent' employment to employees in consideration of the relinquishment of claims by the employees against the companies have been construed to show an agreement on the part of the company to furnish the employee with employment as long as the latter is able, ready and willing to perform such services as the company may have for him to perform. The fact that the employee has a right to quit work at his option does not give the employer a reciprocal right to terminate the contract at pleasure, since the employee, by releasing his claim, has paid a valuable consideration for the option."

It is likewise so analyzed in Rape v. Mobile & O. R. Co., 136 Miss. 38, 100 So. 585, and in the annotation in 35 A.L.R. 1422, et seq.; Roxana Petroleum Co. v. Rice, 109 Okl. 161, 235 P. 502; notes in 62 A.L.R. 234; Fisher v. John L. Roper Lumber Co., 183 N.C. 485, 111 S.E. 857, 35 A.L.R. 1417; Evans v. Cincinnati, S. & Mobile Ry. Co., 78 Ala. 341.

When a person purchases such a contract for a valuable consideration other than the service to be rendered for which he is to receive compensation, there is no reason to suppose that it is not as binding as any other contract thus supported. If he has purchased a contract by which his employer leaves the period of duration to him, it...