Frederick Smith Enterprise Co. v. Lucas

• Decision Date: 27 September 1948
• Docket Number: 36751.
• Citation: 36 So.2d 812,204 Miss. 43
• Court: Mississippi Supreme Court
• Parties: FREDERICK SMITH ENTERPRISE CO., Inc. v. LUCAS.

36 So.2d 812

204 Miss. 43

FREDERICK SMITH ENTERPRISE CO., Inc. v. LUCAS.

No. 36751.

Supreme Court of Mississippi

September 27, 1948

Brewer & Brewer, of Clarksdale, for appellant.

Vincent J. Brocato and Stovall Lowrey, both of Clarksdale, for appellee.

MONTGOMERY Justice.

The declaration filed by appellee in the trial court alleged in substance that on or about December 10, 1942, he was employed by the appellant corporation as farm manager to manage their 'Matagorda Plantation' at Jonestown, Coahoma County for the year 1943, and for his services was to be paid a salary of $250.00 per month and a bonus of five percent on all profits and net earnings from the operation of the aforesaid plantation for the year 1943 and was to be furnished living quarters, heat, light and water; that he was paid his salary for January and February, but on March 16th 1943, the defendant without legal reason, justification cause or excuse attempted to discharge him, and, except as aforesaid, no payments have been made to him under the terms of his contract; that in order to minimize his damages he sought other employment whereby he earned $100.00 in May $125.00 in July and a like amount each month through September, and that in each of the remaining months he earned $150.00; that from July 1st on he was provided, by the terms of his employment, with living quarters, and that the rental value of the house furnished him under the employment by appellant was $45.00 per month. He sued for $295.00 for March, $295.00 for April, $195.00 for May, $125.00 for June, $125.00 for July, $125.00 for August and September, and $100.00 for each of the months of October, November and December, amounting to a total of $1,585.00 plus interest at six percent from the date of each item. He also charged that the net earnings of the plantation were more than $8,000.00, and he sued for five percent thereof, or $400.00, with interest thereon at six percent from December 31, 1943.

The defendant below, appellant here, filed a plea of general issue with special notice that (1) the claim was barred by the three year statute of limitations; (2) that the employment was not for the year but from month to month; (3) that the services were not satisfactory and appellee failed and refused to carry out instructions of his employer and was wholly incapable of properly managing the plantation; (4) that he was addicted to drink and thereby rendered incompetent to handle the farming operations; (5) that in addition to the $500.00 admittedly paid him the appellant paid $100.00 advanced him through one Turner and furnished him groceries in the amount of $15.38. The jury returned a verdict in favor of plaintiff below, appellee here, in the sum of $1,835.00, to which the Court added $390.19 as interest at six percent from January 1, 1944, and rendered judgment for the total amount of $2,275.19. There was a motion for a new trial, which was overruled.

The first matter to be considered is the oral contract of employment. It was contended by appellant that the employment was from month to month, while appellee contended it was for the full year. This issue was properly submitted to the jury and the jury found the employment was for the full year 1943. We can not say from this record that the jury was not justified in so finding from the evidence.

We call attention to the fact that we are not here dealing with 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, but here we have a contract of employment where the employment was for the full year 1943 and the discharge was for alleged cause. The question of the discharge of appellee and its justification was also properly submitted to the jury on the conflicting evidence, and the jury found that appellee was discharged by appellant and that his discharge was unjustified. We can not say this finding was not warranted by the evidence.

Appellant assigned as error the refusal of the court to grant the peremptory instruction requested by defendant, and argues that Lucas was discharged on March 16, 1943, and that this suit was barred by the three year statute of limitations when it was filed on December 6, 1946, in the Circuit Court of Coahoma County. However, it appears from the record here that Lucas filed suit against Frederick Smith Enterprise Company in the Federal Court for Delta Division of the Northern District of Mississippi on May 2, 1945, within the three year limitation, and that this suit was dismissed for lack of jurisdiction on November 13, 1946. Less than a month later this suit was filed.

Section 744, Code 1942, provides: 'If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein; and his executor or administrator may, in case of his death, commence such new action, within the said one year.'

In Hawkins v. Scottish Union & Nat. Ins. Co., 110 Miss. 23, 69 So. 710, this Court held that a dismissal of a suit because of want of jurisdiction of the subject matter is a dismissal for matter of form within the purview of Section 744.

Hence this suit being filed within a month of the dismissal of the suit in the Federal Court it is within the one year saving provision of Section 744.

But appellant argues further that Frederick Smith Enterprise Company, a corporation qualified to do business in Mississippi effective as of June 29, 1942, and named E. C. Brewer as agent for service of process; that the declaration herein stated that Jim Turner was agent of the corporation on whom process could be served and thereby in effect instructed the clerk to issue process to be served on Jim Turner and not on E. C. Brewer, the agent named for the service of process. Appellant made a motion to quash the process on January 13, 1947, and the process was quashed, but by Section 1881, Code 1942, this operated to enter defendant's appearance at the succeeding term of court. The appellant argues from this that since the Federal suit was dismissed on November 13, 1946, and process was not served on one legally authorized to receive it because of Lucas' fault until appearance...