Johnston Bros. Co. v. Bentley

• Decision Date: 16 November 1911
• Citation: 56 So. 742,2 Ala.App. 281
• Parties: JOHNSTON BROS. CO. v. BENTLEY.
• Court: Alabama Court of Appeals

56 So. 742

2 Ala.App. 281

JOHNSTON BROS. CO. v. BENTLEY.

Court of Appeals of Alabama

November 16, 1911

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by Ruby Bentley against the Johnston Bros. Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The facts sufficiently appear in the opinion of the court. The following charges were given for appellee: (1) "The court charges the jury that it was for the jury to determine from all the evidence whether the plaintiff performed the contract upon her part, and that it could not be determined arbitrarily by the defendant or George Johnston." (2) "The court charges the jury that, to enable the plaintiff to recover, it is not necessary for her to show that she had an express contract for the full season. The contract may have been implied from the established custom, or from the course of dealing between the plaintiff and defendant." The following charges were requested by and refused to the defendant: (2) "If the jury are unable to harmonize the testimony of the plaintiff and the defendant, and the jury is unable to say who is telling the truth about the said contract, then the jury should not find for the plaintiff." (3) "If it was within the discretion of George Johnston to determine that it was necessary for the plaintiff to work overtime, and he so requested her to work overtime, and if it was her duty to work overtime when necessary under her contract, and she refused to do so without good excuse, then she breached her contract, and your verdict should be for the defendant, even though the said George Johnston may have been mistaken, and it was not really necessary to have worked overtime for the plaintiff to have properly done her work." (4) "The court charges the jury that if the plaintiff made no charge against the defendant, and the defendant was not to pay her for her alleged service while in New York City, then the jury could not find that the defendant owes the plaintiff anything for such services, and it would be no part of the contract of employment between the plaintiff and the defendant. If the plaintiff was employed by the month, then in discharging her at the end of the month of April, 1909, the defendant did not breach its contract with her." (5) "The court charges you, gentlemen of the jury, that, even though you may be reasonably satisfied from the evidence that it was customary in Anniston during the millinery season of the spring of 1909 for milliners to be employed for the season and not by the month, the burden would still be upon the plaintiff to satisfy the jury that she was hired by the season, and the jury could not look to the custom alone in determining whether she was hired by the season or by the month, and, if the evidence as to whether the plaintiff was hired by the season or the month is evenly balanced, then your verdict should be for the defendant." (6) "The court charges the jury that the case is to be decided upon the evidence, and not what is contained in the pleadings on file in this case." (7) "The court charges the jury that the pleas are not evidence in the case, and your verdict should be based on the evidence only, and if the contract was one of employment by the month, or if the plaintiff breached the contract, then your verdict should be for the defendant."

Tate &amp Walker, for appellant.

Knox, Acker, Dixon & Blackmon, for appellee.

PELHAM, J.

It was the contention of appellee, who instituted the suit in the court below, seeking to recover wages of the appellant as an employé, that she had been employed by appellant as a milliner for the spring season of 1909, and the principal controversy involved in this case is based on this contention and appellant's denial of such employment; its contention being, on the other hand, that appellee was hired only by the month, and from month to month, as her services were needed and might prove satisfactory to appellant.

The "spring season," having reference to the millinery trade, according to the evidence introduced by appellee on the trial, embraced the months of March, April, May, and June, and her services were dispensed with by the appellant on the 1st day of May, 1909, whereupon the appellee instituted suit to recover for a breach of the alleged contract of employment, and for certain work and labor done incident to the employment. The evidence introduced on the trial showed that appellant had employed the appellee during years previous to 1909, the year in controversy, and the customs prevailing with reference to prior employments became pertinent matters of inquiry, and involved in the issues, as bearing on the period or extent of employment during the year in dispute. The contract of employment was entered into between appellant, acting through its president and general manager, George Johnston, and appellee in person, and upon the testimony of these two witnesses, whose evidence upon the trial was in sharp conflict, necessarily depended the finding of the jury; for all the principal facts relied upon relating to the contract of hire, by each of the parties were only known by and testified to by these two witnesses. There was a verdict and judgment for appellee, from which this appeal is prosecuted.

Of the 20 assignments of error, but one has any merit, and that is the assignment going to the objection and motion to exclude, made by appellant's counsel to a part of the closing argument of opposing counsel on the trial. It was improper for appellee's counsel, in his closing argument to the jury, to read the pleas filed by defendant setting up its different defenses, and call attention to the different dates of their filing, and to state in the argument, in connection with reading the pleas, that he (counsel) could see the president of the defendant in the law office of his counsel, telling what his defense was, and the stenographer of counsel for defendant taking down the statement, and at a subsequent time, as shown by the allegations in a plea subsequently filed, defendant's president had stated a different defense to his counsel. The bill of exceptions purports to set out all the testimony in the case, and there is nothing in the evidence to support this argument of counsel that the defendant's president had stated the different defenses to defendant's counsel, and that they had been taken down by a stenographer and formed the basis of the allegations set up by the pleas first filed, and that at a subsequent time he had made a different statement of facts that were incorporated in pleas subsequently filed. And to read the pleas coupled with such an argument was calculated to unfairly prejudice the minds of the jury against the witness Johnston, who was...