Gulf & S. I. R. Co. v. McGlohn

Decision Date24 October 1938
Docket Number33291
Citation183 Miss. 465,184 So. 71
PartiesGULF & S. I. R. Co. v. MCGLOHN
CourtMississippi Supreme Court

APPEAL from the circuit court of Harrison county, HON.W. A. WHITE Judge.

Suit by F. N. McGlohn against the Gulf & Ship Island Railroad Company for loss of salary and pension rights resulting from alleged wrongful discharge from the employ of defendant. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Gardner & Backstrom, of Gulfport, May & Byrd, of Jackson, E. C. Craig and Vernon W. Foster, both of Chicago Ill., and Clinton H. McKay and Lucius E. Burch, Jr., both of Memphis, Tenn., for appellant.

Appellee sued for salary not earned, yet he was discharged for cause, has not been reinstated nor was he entitled to reinstatement, and consequently cannot collect salary not earned by him.

Moore v. I. C. R. Co., 176 So. 593, 180 Miss. 276.

The contract sued on was not for a definite period of time, and therefore, under well settled principles of law, was terminable at the will and pleasure of the railroad company unless there was an independent, valuable consideration moving to the railroad company which took it out of the general rule.

Rape v. Mobile & Ohio R. R. Co., 136 Miss. 38, 100 So. 585, 35 A. L.R. 1422.

The former appeal in this case settled the law of the case as to every matter therein decided, and the lower court and this court are bound thereby under the doctrine of the law of the case.

Johnson v. Success Brick Machinery Co., 104 Miss. 217, 61 So. 178; Brewer v. Browning, 115 Miss. 358.

That this suit is for unearned salary is not susceptible of doubt. The declaration and the various amendments thereto base appellee's right to recover on that ground. The case was so understood and tried and presented to the jury by the appellee in the court below. Unearned salary was the theory of the entire case. It was so understood and tried and presented to the jury in the court below by the appellant. In fact, the only question involved in the case at bar is whether appellee is entitled to unearned salary. It therefore follows that if appellee has not proved his right to recover unearned salary his entire case has failed, and the jury should have been instructed to find for appellant.

Earl Moore case, 176 Miss. 65, 166 So. 395; Mitchell case, 173 Miss. 594, 161 So. 860.

Appellee bases his claim to permanent employment on the provisions of article 30 of the conductors' schedule, yet his employment was terminated in the manner provided in that article.

It is submitted that the investigation was held and conducted in strict conformity with the provisions of said article 30. On the former appeal this court held that appellee's employment could be lawfully terminated in the manner provided for in said article 30, which ruling is binding in the case at bar. The investigation was, in all respects, in compliance with the provisions of article 30.

Caulfield v. Y. & M. V. R. R. Co., 170 La. 155, 127 So. 585.

Appellant had reason to believe and did believe that it had just cause to discharge appellee, and the jury should have been instructed to find for appellant.

Appellee's instruction on the law of case should have been refused by the court. The error in the instruction granted appellee on the law of liability in the case is that it informed the jury that it could disregard the investigation and subsequent appeals by appellee altogether. In other words, by that instruction the court told the jury that it was warranted in treating the investigation and subsequent appeals therefrom as a complete nullity. That instruction told the jury that if it believed from a preponderance of the evidence that appellant discharged appellee from its services and from employment under the agreement in the evidence "without allowing him the benefits and privileges provided by article 30 of the agreement, " without just cause at a time when he was able, ready, and willing to perform the duties of his employment and that he was damaged thereby, then it was the sworn duty of the jury to find for the appellee. The only way this instruction could be justified would be by a ruling that the investigation and subsequent appeals given and allowed the appellee were, as a matter of law, a total departure from the procedure provided for in article 30, so as to be a complete nullity. Most assuredly the exact procedure provided for in that article was followed, and this appears to have been conceded by appellee all the way through the investigation and this trial.

Railway Co. v. Booker, 5 S.W.2d 856.

When appellant gave appellee written notice of his discharge, under article 35 he could claim no further damages than salary for the thirty day period.

Lyon v. Pollard, 20 Wall. 403, 22 L.Ed. 361.

The familiar rule that a contract must be affirmed or disaffirmed in toto applies.

21 C. J. 1208; 13 C. J. 622.

Appellee's demurrers to appellant's special pleas numbered 1, 2, 3, 4, and 7 should have been overruled.

21 C. J. page 1208, sec. 209, and page 1223.

Jo Drake Arrington and Bidwell Adam, both of Gulfport, for appellees.

The cross-appellant's demurrer to cross-appellee's eighth special plea should have been sustained. The cross-appellant was wrongfully discharged by the cross-appellee on June 4, 1932. On November 17, 1934, cross-appellant pleaded guilty to a violation of the Harrison Narcotic Act, and was sentenced to serve two years in prison. However, on account of good behavior, cross-appellant served less than a year, and was released from prison on November 14, 1935, less than a year after being sentenced. The cross-appellant claimed no damages whatever for the period of his confinement in prison; he eliminated entirely the months between October 1, 1934, and March 1, 1936; in all, he eliminated seventeen months of his salary, although he was imprisoned not quite twelve months.

The only legal consequence of cross-appellant's imprisonment was to mitigate, or diminish, his damages; the law does not and will not permit a party guilty of breaching a contract to take advantage of its own wrong by pleading something which happened subsequently to its breach to terminate its liabilities for its breach.

39 C. J. 110; Baldwin v. Kohler, 92 Misc. 174, 155 N.Y.S. 196; Marx v. New York Ribbon Co., 95 Misc. 551, 159, N.Y.S. 853; Bassett v. French, 10 Misc. 672, 31 N.Y.S. 667, 1 N.Y. Ann. Cas. 270, 155 N.Y. 46, 49 N.E. 325; Hard v. Seeley, 47 Barb. 428; Newton v. Porter, 5 Lans. 416; Cuckson v. Stones, 28 Law J. Q. B. 25.

In seeking to invoke cross-appellant's confinement in prison as a breach of the contract on his part, the cross-appellee "is asserting a privilege open to it only had it kept its contract." The cross-appellee should not be allowed to take advantage of its own wrong. The cross-appellant's demurrer should have been sustained.

When the cross-appellant was sentenced to prison, the contract in this case had already been breached, the cross-appellant had evidenced no intention whatever of repairing its breach, it had not offered to reemploy the cross-appellant; the performance and fulfillment of the contract in no wise depended upon the cross-appellant's willingness, readiness and ability to re-enter the cross-appellee's service.

Fahey v. Kennedy, 243 N.Y.S. 396, 230 A.D. 156; Gaynor v. Jonas, 104 A.D. 35, 93 N.Y.S. 287; Spindel v. Cooper, 46 Misc. 569, 92 N.Y.S. 822.

The cross-appellee does not pretend it was "injured" by the cross-appellant's inability to perform the contract while he was in prison. Yet it makes averments or allegations, or rather conclusions of law which must derive from and be based on the fact that it was injured by the cross-appellant's temporary inability to perform his contract. Instead of being injured, the cross-appellee was actually benefitted; the damages it owed the cross-appellant were mitigated, the cross-appellant voluntarily relinquished any claim to damages for loss of salary between the months from October 1, 1934, to March 1, 1936, seventeen months. Certainly the cross-appellee could not ask for more, under the law; being guilty of a breach of the contract in the first place, cross-appellee is in no position to claim more, or to assert the privilege it claims in its eighth special plea.

Bolling v. Red Snapper Sauce Co., 97 Miss. 785, 53 So. 394; Howe v. Motion Picture Adv. Serv. Co., 116 So. 598, 150 Miss. 383; Studdard v. Carter, 82 So. 70, 120 Miss. 394; Burnside v. Bloxham, 121 Misc. 672, 201 N.Y.S. 196.

The court should have refused cross-appellee's instruction on the measure of damages.

The court should have refused cross-appellee's instruction denying the cross-appellant the right to recover any damages whatever for loss of pension rights.

39 C. J. 248, sec. 363; Wilson v. Wudolph Wurlitzer Co., 194 N.E. 441; Schofield v. Zion's Cooperative Mercantile Institution, 96 A.L.R. 1083, 39 P.2d 342.

Certainly, cross-appellant's pension rights were "a thing of value, " the loss of which was a legal injury entitling him to damages.

Roberts v. Mays Mills, 28 A.L.R. 338, 184 N.C. 406, 114 S.E. 530.

Cross-appellant's motion for a new trial should have been granted, as the damages awarded were grossly inadequate to compensate the cross-appellant.

Chapman v. Powers, 116 So. 609, 150 Miss. 687; Burton v. Eureka Bank, 94 So. 247; Fowlkes v. Hardin, 109 Miss. 318, 68 So. 468; Provident Life & Acc. Ins. Co. v. Jemison, 129 So. 180, 153 Miss. 53.

Argued orally by J. L. Byrd, for appellant, and by Jo Drake Arrington, for appellee.

OPINION

Ethridge, P. J.

This suit was filed in the circuit court of Harrison by F. N. McGlohn against the Gulf & Ship Island Railroad Company seeking to recover $ 12, 500 for loss of salary with...

To continue reading

Request your trial
5 cases
  • Earle v. Illinois Cent. R. Co., 3.
    • United States
    • Supreme Court of Tennessee
    • 20 Febrero 1942
    ......Illinois Cent. R. Co., 5 Cir., 112 F.2d 959; Rentshler v. Missouri Pac. R. Co., 126 Neb. 493, 253 N.W. 964, 95 A.L.R. 1; Gulf & S. I. R. Co. v. McGlohn, 183 Miss. 465, 184 So. 71, a prior opinion in the same case being reported in 179 Miss. 396, 174 So. 250. . ......
  • Earle v. Illinois Cent. R. Co.
    • United States
    • Court of Appeals of Tennessee
    • 20 Febrero 1942
    ...... Moore v. Illinois Cent. R. Co., 5 Cir., 112 F.2d. 959; Rentshler v. Missouri Pac. R. Co., 126 Neb. 493, 253 N.W. 964, 95 A.L.R. 1; Gulf & S. I. R. Co. v. McGlohn, 183 Miss. 465, 184 So. 71, a prior opinion in. the same case being reported in 179 Miss. 396, 174 So. 250. . . ......
  • Mississippi State Highway Commission v. Anderson
    • United States
    • United States State Supreme Court of Mississippi
    • 14 Noviembre 1938
  • Reeves v. Reeves, 51269
    • United States
    • United States State Supreme Court of Mississippi
    • 29 Agosto 1979
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT