Appeal
from Circuit Court, Jefferson County; C. B. Smith, Judge.
Action
for damages for causing loss of employment by George Carroll
against the Hill Grocery Company. From a judgment for
plaintiff, defendant appeals.
Affirmed.
Whether
employer's manager was within scope of employment in
procuring former employee's discharge, held for
jury.
Count 2
of the complaint is as follows:
"Plaintiff
claims of the defendant the sum of Fifty thousand
($50,000.00) Dollars damages for that on and before
to-wit, the 30th day of October, 1929, plaintiff was
employed by defendant as manager of one of defendant's
stores, located at 80th Street and 5th Avenue, North
Birmingham, Jefferson County, Alabama, where he had been
employed as such for a period of about two years, and on
and prior to said date had an offer of employment by the
Ward Baking Company of Birmingham, which plaintiff
concluded to accept and gave plaintiff's said employer,
the Hill Grocery Company, Inc., a week's notice of
plaintiff's intention to leave the employment of
defendant. And in keeping with said notice and at the
expiration of one week thereafter, plaintiff left the
employment of said Hill Grocery Company, Inc., on October
30th, 1929, preparatory to entering the employment of said
Ward Baking Company, which employment was to begin about
ten days later.
"Plaintiff
avers that after leaving the services of defendant, on the
date aforesaid, plaintiff was notified by defendant that a
shortage in his stock as the manager of one of
defendant's stores, existed at the time of the
termination of his employment by defendant, and demand by
defendant was made that plaintiff make good the amount of
the alleged claim. Plaintiff thereupon called on
defendant's manager, N. P. Hill, at defendant's
principal office in the City of Birmingham, and there told
the said N. P. Hill then acting as defendant's manager
within the line and scope of his employment as such, that
plaintiff owed defendant no sum, that his stock as manager
of defendant's said store had been checked as he left
defendant's services aforesaid, and that no shortage at
that time existed. Defendant's manager, N. P. Hill then
and there acting within the line and scope of his
employment as such for defendant, stated to plaintiff that
if plaintiff would return to the services of defendant, the
matter would be dropped, and the claim withdrawn, but if he
did not, the shortage would be collected and defendant
would make trouble for plaintiff. Plaintiff thereupon
further declined to acknowledge and pay a claim he did not
owe.
"Plaintiff
avers that on the 16th day of November, 1929, he entered
the employment of said Ward Baking Company, in Birmingham,
and continued to work in said employment until November
22nd, 1929, when on or about said date defendant by and
through its agent N. P. Hill, acting within the line and
scope of his employment for the defendant, did willfully,
maliciously and wrongfully cause the said Ward Baking
Company to discharge plaintiff, telling the said Ward
Baking Company in substance that plaintiff was indebted to
defendant in form of stock shortage which defendant had
been unable to get plaintiff to pay and that until said
claim was paid by plaintiff, defendant would object to the
said Ward Baking Company working plaintiff and if said Ward
Baking Company did not immediately fire plaintiff that
defendant would take from its several hundred stores in
Birmingham and Jefferson County, all of said Ward Baking
Company's pies, cakes and other products and would
immediately discontinue doing business with the said Ward
Baking Company.
"Plaintiff
further avers that by reason of and as a proximate
consequence of the willful, malicious and wrongful
interference with his contract rights as aforesaid, he was
caused to lose his job, his contract for permanent
employment with the Ward Baking Company was broken and he
was discharged although he had previously to that time
entered into a contract with the said Ward Baking Company,
and was in the regular and permanent employment of said
baking company.
"Plaintiff
further avers that he, by virtue of said willful, wrongful
and malicious interference with his contract rights, and as
a proximate result thereof, was discharged by the said Ward
Baking Company and was thereby caused to lose the earnings
he would have received from said employment, was caused to
suffer great mental anguish, was sorely discouraged and
unable to obtain work in the Birmingham district, was put
to great expense in and about his efforts to secure
employment, was ultimately forced to leave his family in
Birmingham, in need and without funds, and to leave the
City of Birmingham, where he had lived and worked for many
years and for which he had a sincere attachment, and was
compelled to seek employment in another state, and in
addition to the actual damages suffered by reason of said
willful, malicious and wrongful interference with the
contract rights and the resulting discharge of plaintiff,
plaintiff claims punitive damages, in order that the
defendant may be punished for its said willful conduct and
that said damages may be awarded by a jury in its sound
discretion such as may serve to deter others engaged in a
like business with the defendant from the commission or
repetition of such a wrongful, willful and malicious
interference with the rights of men to work and earn a
livelihood for themselves and their families in this
state."
Excerpts
from the oral charge of the count, made the basis of
assignments 28, 29, and 30, are as follows:
"(28)
In addition, in this case, if you find for the plaintiff
you may award him what is called punitive damages; that is,
to punish the defendant for such wrongful conduct. However,
the awarding of punitive damages is within your sound
discretion. You may or may not award them, but if you do,
in fixing the amount of same, you may take into
consideration the character and degree of the wrong as
shown by the evidence."
"(29)
If you find for the plaintiff, you may award him such sum
as would reasonably compensate him for any mental pain he
may have suffered as a proximate consequence of the wrongs
complained of. The law furnishes no way by which to measure
what is reasonable compensation for mental pain, and
injuries of that character, but it is left to the sound
judgment and discretion of the jury trying the case to
determine from all the evidence what is reasonable
compensation to compensate the plaintiff for any physical
or mental pain he may have suffered, I mean."
"(30)
In addition, the plaintiff claims he lost time from his
work, that is, wages, as a proximate consequence of the
wrongs complained of. Now, there was a duty on the
plaintiff, if he was discharged to use due diligence to
minimize his own damages or injury; in other words, he was
under the duty to use diligence to endeavor to secure other
employment, and the defendant in this case would not be
liable to plaintiff, if you find for the plaintiff or any
loss of wages the plaintiff might have obviated by
diligence on his part in an effort to secure employment.
The plaintiff would be entitled to such sum as would
reasonably compensate him for lost wages, if you find from
the evidence he did lose any wages, as a proximate
consequence of the wrongs complained of in the
complaint."
The
charge requested by defendant, refusal of which is made the
basis of assignment 37, is as follows: "(37) I charge
you gentlemen of the jury, that if you believe the evidence
in this case, you cannot find that N. P. Hill was acting
within the line and scope of his authority as a servant or
agent of the defendant at the time he is alleged to have
acted as averred in the complaint in this cause."
BOULDIN
J.
One's
business or employment is fully recognized in the law of
Alabama as in the nature of a property right.
To
unlawfully and maliciously interfere therewith, causing the
employee to be discharged by his employer, is actionable.
That
the employment is for no...
