Mobile, J. & K. C. R. Co. v. Hawkins

• Decision Date: 16 December 1909
• Citation: 51 So. 37,163 Ala. 565
• Parties: MOBILE, J. & K. C. R. CO. v. HAWKINS.
• Court: Alabama Supreme Court

51 So. 37

163 Ala. 565

MOBILE, J. & K. C. R. CO. v. HAWKINS.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by John R. Hawkins against the Mobile, Jackson & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

McIntosh & Rich, for appellant.

Gregory L. & H. T. Smith, for appellee.

MAYFIELD J.

This was an action brought by the appellee, plaintiff, against the appellant railroad company, defendant, for breach of contract for employment of the appellee, plaintiff, as superintendent of the appellant railroad company. The complaint contained three counts. The first declared upon a breach of a written contract by which the defendant employed the plaintiff as its superintendent for the term of one year from the 24th day of April, 1905, at the rate of $2,700 per annum, payable in monthly installments of $225 per month; the second count declared upon a breach of the same contract, which contract was set forth in hæc verba; and the third count of the complaint declared upon an account for $2,700 due from defendant to plaintiff on the 27th day of April, 1905. Each count was subsequently amended by the plaintiff by striking out the words and figures "twenty-seven hundred dollars" and by inserting in lieu thereof the words and figures "three thousand dollars," where the words and figures "twenty-seven hundred dollars" occurred, and by changing the words and figures "to one hundred and twenty-five dollars," where the same occur to "two hundred and fifty dollars."

The defendant to the original complaint filed four pleas: First the general issue, and three other special pleas, challenging the authority of the person who signed the contract sued upon to bind the defendant. These pleas were likewise refiled to the complaint after it was amended. Demurrers were interposed to the last three pleas, 2, 3, and 4, as originally filed to the amended complaint, and were sustained both as to the original and amended complaint. The defendant subsequently filed a plea of non est factum, in which it was averred that the alleged contract was not executed by the defendant, nor by any one authorized to bind it in the premises.

The case was tried on the pleas of the general issue and upon issue raised by the plea of non est factum, which resulted in a verdict and judgment for the plaintiff for the sum of $1,836. From this judgment the defendant appeals, here assigning as error the sustaining of the demurrers to his special pleas 2, 3, and 4, as originally filed and as amended, a number of rulings by the trial court as to the admission and exclusion of certain parts of evidence offered by the respective parties upon the trial, the giving of the general affirmative charge for the plaintiff upon his request in writing, and the refusal of the trial court to give several written charges requested by the defendant. It may be well to state the substance of the evidence and the effect thereof, as diversely contended for by plaintiff and by defendant.

It appears from the record that on the 30th day of September 1903, the defendant railroad company entered into a written contract with one F. E. Dewey, by which he was appointed general manager of the defendant railroad company and to be elected second vice president, the contract of employment to extend for three years from the time of making. This contract provided that Dewey should have complete charge of the department of maintenance, of ways, of equipment, traffic, and transportation, and that in and about the conducting of the business he should be unhindered and uninterfered with, except that he should receive and obey general instructions from the board of directors. The contract also provided that certain designated offices, to wit, those of auditor, secretary, and treasurer, should be filled by the board of directors, but contained no provisions as to the office or place of superintendent. It also provided that the railroad company reserved the right to provide a superintendent of systems, of accounting, and the handling of the funds, that the general policy of the road should be determined by the board of directors, and that the execution of all contracts extending beyond a period of 12 months should be submitted to and approved by the board of directors before becoming effective. The contract was signed in the name of the defendant company, by W. D. Stratton, as its president, and attested by P. C. Butler, as the secretary of the company, and bore the corporate seal of the company. The said Dewey entered upon the discharge of his duties as general manager and vice president soon after the execution of the contract, and, as far as it appears, continued so to act uninterruptedly until about the 22d of April, 1905.

It further appears that the plaintiff was employed as superintendent of the defendant railroad company by the said Dewey on or about March 5, 1904, and that he continued to act as such superintendent until April 24, 1905. Whether this previous employment was by the year, and what amount of compensation was paid, is not made certain by the evidence as shown by the record. There seem to have been different contracts or agreements as to employment, and that the duties and compensation varied during this time. It also appears that the general manager had the power and authority to discharge subordinate officers, including the superintendent. It also appears that prior to the 22d day of April, 1905, there arose a friction between Mr. Bird, Mr. Robinson, the president of the defendant railroad company, and Mr. Dewey, the general manager, arising from Mr. Dewey's unwillingness to abide by the instructions of the president; that on the 22d day of April, 1905, Mr. Robinson, the president, who resided in New York, came to Mobile, and there met Mr. Dewey, and on that date requested him to resign as general manager of the said company, stating to Mr. Dewey that a large majority of the board of directors so desired. Mr. Dewey declined to resign, or to obey the directions of Mr. Robinson, whereupon Mr. Robinson, as president, wrote a letter to Mr. Dewey, as manager, discharging him as general manager of the company, and delivered it to Mr. Dewey. Mr. Dewey refused to recognize the authority of Mr. Robinson to discharge him, and refused to give up the property to him; Mr. Robinson claiming that he was in charge of the property as president, and that in that capacity he relieved Mr. Dewey of all responsibility and of all connection with the company's affairs. Mr. Dewey replied that he would continue to act as the general manager. Mr. Robinson then and there appointed one Mr. T. F. Whittlesey general manager of the company, to take charge at once, who accepted the appointment. Mr. Robinson, as president, then requested the heads of the departments to meet at the office of the treasurer of the company at once. Among these heads was the plaintiff, John R. Hawkins. At this meeting Mr. Robinson introduced Mr. Whittlesey, the manager whom he had appointed, stating to them that he had discharged Mr. Dewey as manager, and that they should report to Mr. Whittlesey and receive instructions from him.

The officers or heads of the departments apparently acquiesced in this without protest, except Mr. Hawkins, the plaintiff in this suit, who was superintendent. The plaintiff stated at this conference that he desired to delay his final answer, so he might have time to think over it--that he might prefer to resign. While he was considering the matter of resigning or of continuing under Mr. Whittlesey's management, he went with Mr. Whittlesey and the other officers through the shops, to afford Mr. Whittlesey opportunity to issue instructions. Later in the same day Mr. Hawkins met Mr. Robinson in the office, and then stated that he had decided to recognize Mr. Whittlesey as general manager, and was prepared to accept orders from him. Mr. Robinson testifies that it was then agreed between the plaintiff and himself that the plaintiff should continue as superintendent during the pleasure of the company.

Mr. Dewey had positively declined to recognize the authority of Mr. Robinson to discharge him or to interfere in the management of the affairs; and the friction between the two as to the control and management of the office and property of the company, during the remainder of that day and all the next day, which was Sunday, and for a part of the next succeeding day, seemed to intensify rather than abate, resulting in Mr. Robinson's excluding Mr. Dewey from the office then occupied by Mr. Dewey, and in the removal of the locks from the doors and the replacement of others. Mr. Dewey employed counsel to represent him in his effort to regain possession of his office and control of the property, and against what he claims were unwarranted acts of Mr. Robinson as president.

One more conference was held between counsel representing the railroad company, or Mr. Robinson, and counsel representing Mr. Dewey, the result of which, as contended by the plaintiff, was that Mr. Robinson withdrew his objection to Mr. Dewey's occupying the office of general manager, and that the latter continued to discharge the duties of the office until he was formally discharged by the board of directors, at a meeting held in New York; whereas, it is contended by the defendant, or by Mr. Robinson, the president, and his attorneys, that the result of this conference was that Mr. Dewey was retained as vice president but was removed as general manager--that is, that Mr. Robinson had no power to remove him as vice president, but did have to remove him as general manager, and that his occupation and connection after said 22d day of ...