Moore County Carbon Co. v. Whitten., 5165.

• Decision Date: 20 May 1940
• Docket Number: No. 5165.,5165.
• Citation: 140 S.W.2d 880
• Parties: MOORE COUNTY CARBON CO. v. WHITTEN.
• Court: Texas Court of Appeals

140 S.W.2d 880

MOORE COUNTY CARBON CO. v. WHITTEN.

No. 5165.

Court of Civil Appeals of Texas. Amarillo.

May 20, 1940.

Rehearing Denied June 3, 1940.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Action by M. O. Whitten against Moore County Carbon Company to recover wages allegedly due under an employment contract. From an adverse judgment, defendant appeals, and plaintiff filed a cross-assignment of error.

Affirmed.

Don Emery and R. L. Foster, both of Bartlesville, Okl., and E. H. Foster and Tom D. Lumpkin, both of Amarillo, for appellant.

Archer & Archer, of Corpus Christi, and Shannon, Ochsner & Little and Joe Harlan, all of Amarillo, for appellee.

JACKSON, Justice.

The appellee, M. O. Whitten, instituted this suit against the appellant, Moore County Carbon Company, a corporation, to recover the sum of $1,400 damages—the wages he would have received as employee—under a supplemental contract with appellant, between March 29, 1938, and March 1, 1939, but for the breach of said employment contract and the wrongful discharge of appellee by appellant. In the alternative he asked that in the event it was held that his contract with appellant covered only the period of time between March 29, 1938, and August 1, 1938, he be adjudged a recovery for the sum of $540 for said breach and wrongful discharge.

The appellee attaches a copy of the contracts or working agreements upon which he sues to his petition and makes them a part thereof.

The facts alleged as a cause of action will sufficiently appear in the issues submitted to the jury and their findings thereon, and an extended statement of the allegations is unnecessary.

The appellant answered by general demurrer, numerous special exceptions and general denial.

The appellee was admittedly discharged March 29, 1938, by the appellant.

In response to special issues submitted by the court the jury found, in effect, that the appellee requested C. C. McIntosh, the superintendent of appellant, to appoint a member of a settlement committee as stipulated in the agreement to serve in adjusting the differences between him and appellant growing out of his discharge; that the superintendent refused to appoint or name anyone to act as a member of such committee; that the appellee, within five days from the time of his discharge, gave written notice to the superintendent that he was contesting his discharge; that the superintendent informed appellee about March 30, 1938, that the company would not submit any controversy concerning appellee's discharge to arbitration; that appellee would have voluntarily continued in the employment of the appellant company until August 1, 1938, had he not been discharged; that the appellee was not given permission by the superintendent of the company to absent himself from work on the afternoon of March 19, 1938.

On these findings judgment was rendered for appellee for the sum of $528 with interest at 6% per annum from August 1, 1938, until paid.

Appellant assigns as error the action of the court in overruling its general demurrer to appellee's petition and in refusing to direct a verdict in its behalf because the working contract or agreement was indefinite and uncertain as to the period of time appellee should be employed since he was not required to remain in the employ of appellant for any definite period nor appellant required to keep appellee employed for any definite time.

The provisions of the contract material to a consideration of these assignments are that the agreement was made between the appellant and the Moore County Carbon Company Employees' Association, composed of a majority of the employees at said plant, and provided the agreement should be effective from August 1, 1937, until August 1, 1938, and each year thereafter unless cancelled or notice of a desire to amend was given by one party thirty days prior to any anniversary of the agreement; that the employees should work forty hours per week at the rate of 75¢ per hour, also stipulates for lay-offs, re-employment, promotions and seniority.

It will be observed that the working agreement provides that it shall be effective for one year. There is no stipulation for a penalty or liquidated damages to be charged to either party on account of a breach but the law is that an employee who is ready and willing to perform his part of the contract of hire who is unlawfully discharged during the term agreed upon may maintain an action for damages. 29 Tex.Jur. 33, para. 17.

In Gulf, C. & S. F. Ry. Co. v. Jackson, 29 Tex.Civ.App. 342, 69 S.W. 89, 91, the court holds: "The evidence is, we think, sufficient to show that appellant contracted to employ the appellee for a year, provided the work of repairing its track was not complete before the expiration of that time. It was not necessary, in order to make this contract binding upon appellant, that the appellee should have agreed to work for that length of time. It was competent for the parties to make a contract binding upon one of them for a certain length of time, but which the other might terminate whenever he saw fit. Such being, in our opinion, the character of the contract shown by the evidence in this case, the appellant would be liable for all of the damages which were directly caused by its breach of the contract."

The general rule is, under the decisions of this State, that a working agreement which may be terminated at the will of one of the parties may also be terminated by the other party but in the cases so holding there was no express agreement by the employer not to wrongfully discharge the employee and a contract which so stipulates does not fail for want of mutuality, certainty or consideration. St. Louis, B. & M. Ry. Co. v. Booker, Tex. Civ.App., 5 S.W.2d 856. To the same effect is the holding in Harper et al. v. Local Union No. 520, International Brotherhood of Electrical Workers et al., Tex. Civ.App., 48 S.W.2d 1033.

In Mansell v. Texas & P. Ry. Co. et al., Tex.Com.App., 137 S.W.2d 997, 999, in answer to the certified question, "Does the fact that appellants allege a contract of employment that is wholly indefinite as to the term of such employment make of appellants' suit a cause of action upon a contract terminable at the will of the employer?", the court holds that such a contract of employment could not be terminated with impunity by the employer even though indefinite as to the time employment should continue.

While in our opinion this contract provided that employees should work for the company at the price stipulated therein for one year, a definite time, but should we concede that it does not, nevertheless, under the authorities, the appellant would not be authorized to breach such contract and wrongfully discharge an employee because the time of the employment was not certain and definite.

The appellant presents as error the action of the court in refusing to direct a verdict in its behalf since article 6 of the working agreement stipulates for the adjustment by arbitration of all disagreements and disputes arising between employer and employee under the terms of the agreement or on account of the discharge by appellant of an employee and there was no evidence, it asserts, to show that appellee complied with these stipulations for arbitration and none that appellant prevented appellee from complying therewith.

Article 6 of the working agreement is as follows:

"Application of Agreement and Settlement of Disputes.

"Adjustments of any misunderstanding, dispute, or disagreement arising out of the application of the terms of this agreement, or by reason of the discharge of an employee, shall be handled as follows:

"(a) The employee affected shall, personally, or through the Moore County Carbon Company Employees Association's Grievance Committee, first seek adjustment of the issue with the employee's immediate foreman.

"(b) Failing to secure satisfactory...