Dallas Hotel Co. v. Lackey

• Decision Date: 16 May 1947
• Docket Number: No. 13798.,13798.
• Citation: 203 S.W.2d 557
• Parties: DALLAS HOTEL CO. v. LACKEY.
• Court: Texas Court of Appeals

203 S.W.2d 557

DALLAS HOTEL CO. v. LACKEY.

No. 13798.

Court of Civil Appeals of Texas. Dallas.

May 16, 1947.

Rehearing Denied June 27, 1947.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Action by H. B. Lackey against the Dallas Hotel Company for breach of employment contract. Judgment for plaintiff and defendant appeals.

Affirmed.

Clark, Coon, Holt & Fisher, of Dallas, for appellant.

Hassell & Hassell, of Dallas, for appellee.

YOUNG, Justice.

The suit was for breach of a contract allegedly guaranteeing a year's period of employment; and, following a jury verdict, judgment was rendered against the Hotel for $3,660 which is here appealed.

Appellee's claim is based primarily on a letter of date August 2, 1944 from H. Fuller Stevens, acting for defendant, viz.: "Mr. H. B. Lackey, Room 1345, Adolphus Hotel, Dallas, Texas. Dear Mr. Lackey: This will confirm our conversation this morning, in which I have engaged you to take over complete management of our drug store, at a salary of $450.00 a month, and prior to the end of a year's service, we will work out some additional compensation in the form of a bonus, which will equal $2,000.00 additional compensation. I hope that you will be able to assume your duties not later than the 20th of August, as there are a number of details, and the procurement of merchandise should be started immediately. Yours very sincerely, (s) H. Fuller Stevens, Managing Director." Interposed as a complete defense to the action was an instrument styled "Employment Agreement," undated, but signed, according to plaintiff Lackey, before he "went to work on August 25th." It reads: "This agreement made this ____ day of ____, 19__ between Hotel Adolphus, herein called `Employer,' and the undersigned employee, hereinafter called `Employee.' Witnesseth That the Employer employs the Employee to work in or about the Hotel Adolphus, and the Employee accepts such employment upon the following terms: 1. The Employee agrees to work at the weekly, daily or hourly rate, as shown on the opposite space provided for same, and a part of this agreement. 2. It is mutually agreed that any lodging and/or meals furnished to the Employee by the Employer shall constitute a part of such Employee's compensation, and that the Employer is authorized to deduct from or consider a part of the wages of such Employee the sum of $2.50 per week for lodging, and the sum of 25¢ per meal for meals. 3. The Employee hereby agrees to wear such uniforms as may be required of him (her) by the Employer, and hereby authorizes the Employer to deduct from his (her) salary the sum of $____ per day/week for the rental, laundering and/or dry cleaning of said uniforms. 4. The Employee agrees promptly to deliver to the Employer any money, jewelry or other property which the Employee may find in or about the Hotel and hereby releases all rights therein and claims thereto. 5. The Employee hereby agrees to obey strictly all rules and regulations of the Hotel now in force or that they may be issued hereafter. 6. The Employee hereby pledges that he (she) will be no party to any law violation in or about the Hotel, hereby declaring that he (she) has been properly instructed and cautioned in regard to the same. 7. The Employee agrees that, if at any time during his (her) employment, the Employer shall desire to search his (her) person, baggage, clothing, packages and effects, he (she) will submit to such examination without objection, and he (she) hereby waives all claims for damages on account of such examination. 8. It is understood that the Employee has read over this contract and understands the same and agrees to every paragraph thereof, and this contract cannot be superseded by any oral agreement. 9. This agreement of employment is at the will of the Employer and the Employee may be discharged without cause at the will of the Employer, and the Employee agrees that he or she will make no claim for any wages or salary from and after the date of notice of discharge from the Employer. 10. I have read over the contract of employment with the Hotel Adolphus, and I have this day signed and I understand that my employment is subject to cancellation at any time at your pleasure, and I agree not to make any claim for future wages after notice of termination of the agreement. In witness whereof, the parties hereto have signed this agreement. Hotel Adolphus H. F. Stevens H. B. Lackey. Office Record Name, Lackey, Homer Bowden, Badge No. Address, Ambassador Hotel, Time Card No. Telephone Social Sec. No. 448-01-8259 Date of Birth, April 30, 1902. Color, W.; Sex, M.; Single; Married. Education-Grammar 8 yrs. High School, 4 yrs. College, 4 yrs. Previous Employment 1. Biltmore Hotel, Oklahoma City, 3 yrs. 2. 3. Date Employed 8-25-44. Position—Drug Store Mgr. Rate $450.00 Dept. Head. Mgr. HFS. * * *"

Jury issues and answers were, in substance, that (1) during the time H. B. Lackey was employed by defendant he reasonably well performed all duties of manager of the Adolphus Hotel Drug Store; (2) that plaintiff suffered damages in the sum of $1,660 by reason of his discharge as manager of the drug store prior to August 25, 1945; (3) that Richard Nash was prompted by malice toward plaintiff in discharging him; but (3) that he was not thereby entitled to exemplary damages. To the jury finding of $1,660, the court added the $2,000 bonus mentioned in above letter of August 2, making up the total judgment under review.

Appellee had been employed in Oklahoma City at the time of the August letter; but, upon its receipt, went to that city, resigned his position, sold his home, removing household goods to Dallas, and on August 25 entered upon the instant employment; being engaged for the first several months in buying stock for the drug store, then in process of installation. The new business opened on December 18, plaintiff continuing in his capacity as manager until April 15, 1945, when he was discharged by Richard Nash, managing director of defendant, and tendered 30 days additional salary in lieu of further notice.

Mr. Lackey moved back to Oklahoma City where he secured work in June 1945, his expenses incident thereto and salary deficit to August 1945 constituting items of the claim in suit. Mr. Stevens, for the Hotel, knew at time of said letter that plaintiff was quitting another job, selling home and moving to Dallas for purpose of entering the new employment.

Further defensive pleadings were to the effect that the contract of hire contemplated a rendition of services satisfactory to defendant which plaintiff failed to perform; detailing numerous infringement of hotel regulations, and failures to abide by orders and instructions of defendant's representatives; and much of the 320 page statement of facts is devoted to such issue of fact. It is the substance of appellant's points 1, 2 and 3, that this case should be reversed because (a) the employment agreement was executed before appellee had gone to work and, as it involved the same subject matter and transaction, became the only contract between the parties, all prior dealings being merged therewith; hence any provision contained in the letter of August 2 must yield to the later writing; (b) a proper construction of the letter and employment contract, based on the intention of the parties, indicates a single contract, in which event all provisions of the August 25 agreement became effective, making plaintiff an employee at will, and waiving all claims for future salary and wages in event of discharge; (c) the writings, at most, simply evidenced an employment terminable from month to month and insufficient under undisputed evidence to support any claim of a year's contract of employment.

It is appellee's primary contention that he resigned his Oklahoma position and moved to Dallas in reliance on said August letter which imported a period of employment of one year, or to August 1945, hence the earlier discharge was wrongful; that the employment card signed on August 25, 1944 was inoperative as a contract or part of any contract between the parties because (a) without consideration and void; (b) showing upon its face that it was but a memorandum of plaintiff's history and background, and not intended to form a part of the contract of August 2; (c) the employment card, as a contract, was void because lacking in mutuality, providing, as it does, that the rights of the parties should exist only at the will of defendant; (d) if the writing of August 2 and the printed card of August 25 should be construed together as one instrument, then the typewritten letter contemplating employment for a year would take precedence over the printed card in case of irreconcilable conflict.

Plaintiff Lackey testified with respect to the execution of said letter: "A. After he (H. Fuller Stevens) had finished writing this letter he made either two or three copies. I should think it would be three copies. And he called the Auditor, Mr Etienne, to his office, introduced him to me, and told him that he had hired me to take over complete management of the drug store and showed him a copy of this letter and told him that that was to be attached to my employment card at the time I signed it and to be a part of it." That the letter was to be attached to and made a part of the employment agreement, was also developed by defendant on cross-examination; and concerning the employment card, plaintiff likewise testified at instance of defendant:

"Q. Immediately above that we see this provision, `This agreement of employment is at the will of the employer'. Do you know what that means, Mr. Lackey? A. Yes, sir.

"Q. What does it mean, please sir? A. Well, it...