Lee v. Hampton

• Decision Date: 02 December 1901
• Citation: 79 Miss. 321,30 So. 721
• Court: Mississippi Supreme Court
• Parties: THOMAS J. LEE v. GEORGE W. HAMPTON

30 So. 721

79 Miss. 321

THOMAS J. LEE v. GEORGE W. HAMPTON

Supreme Court of Mississippi

December 2, 1901

FROM the circuit court of Sunflower county. HON. FRANK E. LARKIN Judge.

Hampton the appellee, was plaintiff in the court below; Lee appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court. The opinion of the court fully states the facts of the case.

Reversed and remanded.

McWillie & Thompson and J. R. Baird, for appellant.

The plaintiff's evidence on the subject of a contract, aside from his bold assertions of conclusions, was this: He had been in Lee's employ for several years, receiving $ 500 annually, and said to Lee, in December, "Do you wish me to stay on your place?" To this Lee replied, "You may stay, if you wish." To this the plaintiff did not respond, and did not advise Lee whether he would or would not stay. However, he stayed on the place until January 13, 1900, when an altercation occurred between the parties, and Lee ordered plaintiff to leave. This does not make out the plaintiff's case, and does not establish a contract. There was no acceptance of Lee's implied offer. There was no agreement on terms; no determination of what services Hampton was to render, and no fixing of his compensation. It will be noted that Hampton simply made an inquiry as to whether Lee wished him to remain on the place; no offer by Hampton to do so. To the inquiry, Lee responded, "You may stay, if you wish." Hampton did not tell Lee that he would do so--that is, stay on the place--there was a total failure to fix terms and agree upon services to be rendered and salary to be paid. Contracts of this character are not implied.

The court below erred in not allowing the defendant, appellant, to show, by cross-examination of Hampton, that he had been guilty of drunkenness. It will be found, on examination of the books, that an employer, when sued for the wrongful discharge of a servant, may defend by showing any just cause for the discharge, even if the facts were unknown to him at the time. It was unnecessary for Lee to show, or offer to show, that he knew of Hampton's drunkenness and that he discharged him because of it.

The measure of damages adopted in the court below was improper and greatly to the prejudice of the appellant. The correct measure of damages, in case a plaintiff otherwise makes out his case, is the actual loss resulting from the discharge, and it is the plaintiff's duty to use reasonable efforts to avoid loss by securing employment elsewhere. From the amount of wages he would have earned under the contract, there should be deducted such sums as the plaintiff earned, or, by reasonable diligence, might have earned elsewhere. This is the rule where the discharged employee obtains a salaried employment from another; but where he enters into business for himself, as Hampton did, the value of his work should be deducted. Huntington v. Ogdenburg, etc., R. R. Co., 33 How. Pr. (N. Y.), 416. In this case it was shown that Hampton went to farming on his own account. This was not Lee's farm or business, and he had no concern with its profits and losses, and ought not to have been held responsible therefor.

The second instruction given for the plaintiff authorized a verdict for $ 500, the full salary, "less the net earnings of his (plaintiff's) labor during the year 1900." This was erroneous. It made Hampton's farming operations Lee's business, and that, too, whether carried on skillfully or unskillfully. It made Lee responsible for the sunshine and the shower; it made him a guarantor of reasonable skill in Hampton himself, as well as of every laborer on the farm; of the fertility of the soil and of the suitableness of every farm animal and implement used by Hampton. The jury should have been permitted, if they saw proper to find for the plaintiff, to have made deduction on account of the value of Hampton's labor and services in making the crop. The data was given the jury upon which to estimate this value, and yet, by the instruction of the court, such an estimate was excluded from consideration and the minds of the jurors carried to an inquiry of net results of the farming operations, and that, too, without reference to whether it was reasonably managed.

S. D Neill and D. M. Quinn, for appellee.

Our client's case was well made out by the testimony, and the jury, responding to that testimony, awarded him a moderate judgment, all of the facts considered, and it should be affirmed by this court, since, as we think, no errors of law were committed on the trial. That the contract of employment was proven to the satisfaction of the jury is manifest, and the evidence in the record was amply sufficient to support the verdict. That the contract was broken is scarcely denied. The evidence offered to show that Hampton was discharged because of drunkenness was properly excluded, for the plain reason that it had not been pleaded. Hampton was entitled to recover his salary for the year, less what he was able to make during the time of his discharge. Our positions in this case are supported and maintained by the following authorities: 7 Am. & Eng. Enc. L. (2d ed.),125; Ib., 129; Springer v. Cooper, 11 Ill.App. 267; Northam v Gordon, 46 Cal. 582; Royal Insurance Co. v. Beatty, 119 Pa. 6 (Am. St. Rep., 622); Arbuckle v. Smith, 74 Mich. 568; Roberson v. Cloud, 47 Miss. 208; Robbins v. Kimball, 55 Ark. 414; Watkins v. Ligon, 10 Smed. & M., 615 (51 Miss. 470); Smith v. Kerr, 108 N.Y. 31; Pratt v. Prouty, 104 Iowa 419; Arbuckle v. Smith, supra, 47 Miss. 308 (7 Am. & Eng. Enc. L. (2d ed.), 150-152; Wheatley v. Covington, 11 Bush. (Ky.), 18; Mahon v. New York, 10 Misc. (N. Y. C. P., 1), 664 (1 N. Y. Ann. Cas., 361); Title v. Bonnor, 53 Miss. 578; ...