People's Shoe Co. v. Skally

• Decision Date: 20 April 1916
• Docket Number: 1 Div. 925
• Citation: 71 So. 719,196 Ala. 349
• Parties: PEOPLE'S SHOE CO. v. SKALLY.
• Court: Alabama Supreme Court

71 So. 719

196 Ala. 349

PEOPLE'S SHOE CO. v. SKALLY.

1 Div. 925

Supreme Court of Alabama

April 20, 1916

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by John Skally against the People's Shoe Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p 450. Affirmed.

The declaration was upon breach of contract of employment. The pleas were: The general issue. Plaintiff left the employment of the defendant of his own free will and accord on July 1 1914, and was not discharged; left such employment without cause on the part of the defendant. That after plaintiff ceased to work for defendant plaintiff did obtain other employment in the same line and character of work and business in which he was theretofore employed by defendant and in the same community in which plaintiff was theretofore employed by defendant, at a salary of $100 per month, and worked at such employment for a period of one month. That after plaintiff worked in the employment of defendant plaintiff went into business for himself in the same community in which he was theretofore employed by defendant, from which said business plaintiff realized the sum of $500. Plaintiff could have, by the exercise of reasonable effort and diligence, obtained employment of the same character in which he had theretofore been employed by defendant and in the same locality and community from the time he ceased to be an employé of defendant. J.L. Cawthon was being examined as a witness; he being the president of the People's Shoe Company. He was asked:

"Now, didn't you have a conversation with Mr. McAtee in your store after he had been over to Mr. Armbrecht's office, Mr. Armbrecht being your attorney, in which you inquired as to what he had told Mr. Armbrecht, and when Mr. McAtee told you, in substance, that he told Mr. Armbrecht he had a contract by the year, that you then told him that would be throwing you down, and he must go to Mr. Armbrecht and change his testimony?"

This question was also propounded as to other witnesses, and, after objection overruled, the witness answered: "No." These witnesses were introduced in rebuttal if such conversation took place between them and Mr. Cawthon, and, after objection overruled, the witnesses answered: "Yes." The charges sufficiently appear.

Armbrecht, White & McMillan, of Mobile, for appellant.

Leigh & Chamberlain and Stevens, McCorvey & McLeod, all of Mobile, for appellee.

MAYFIELD J.

This is an action by an employé to recover the salary or compensation he would have received for six months' service but for the alleged wrongful discharge by the employer. The trial was had on the general issue and special pleas setting up the fact that plaintiff voluntarily quit the employment, and that he was not wrongfully discharged. The defendant also filed several pleas, attempting to set up the defense that the plaintiff did receive, or could have received, similar or like employment in the same community, and received, or could have received, ample or full compensation for his services, and that he was therefore not damaged if discharged as alleged.

Demurrers were sustained as to these pleas, and the first assignments of error go to these rulings of the court. These pleas were each clearly subject to the demurrer interposed. They profess or purport to be pleas in bar of the entire action, and not in abatement, or in mitigation of damages. Counsel for appellant are in error in concluding that the pleas do not profess or purport to answer the entire cause of action alleged, but go only in bar of a part, or in mitigation of damages. If they were intended as such by the pleader, the pleas should have said so, either expressly or by fair implication. Counsel for appellant concede that the law and a rule of pleading is that a plea must answer all it professes to answer; but they say these pleas do this. As we have said above, we do not agree with counsel in this construction of the pleas.

A plea professing to answer the whole declaration, and which answered only one count, will be adjudged bad on demurrer. Adams v. McMillan, Ex'r, 7 Port. 75; Tomkies et al. v. Reynolds, 17 Ala. 109; Wilkinson v. Moseley, 30 Ala. 562.

So a plea assuming to answer the whole declaration, but omitting to answer a material part, is bad on demurrer. Standifer v. White, 9 Ala. 527; Mills & Co. v. Stewart, 12 Ala. 90; White v. Yarbrough, 16 Ala. 109.

"The defendant may reduce the amount of recovery by showing such other employment, or that plaintiff might have obtained other employment by the exercise of reasonable diligence; but these facts could not be used to defeat entirely plaintiff's cause of action. Wilkinson v. Black, 80 Ala. 329; Morris & Co. v. Knox, 96 Ala. 320, 11 So. 207; Troy Co. v. Logan, 96 Ala. 619, 12 So. 712." Fitzpatrick, etc., Co. v. McLaney, 153 Ala. 586, 592, 44 So. 1023, 127 Am.St.Rep. 71.

Moreover, if the pleas were intended as counsel for appellant contend--that is, in mitigation of damages--such matter was admissible under the general issue, and the record shows that this matter was litigated under the general issue; hence, if error, it would be without possible injury.

Where a certain part of a plea is good only in reduction of damages, but not as a defense in bar, whether such matters are properly stricken from the file, if stricken on motion, is immaterial, for the reason that the matter would be available under the plea of the general issue, and, if so, its elimination from the plea by motion to strike would be without injury. Hayes v. Miller, 150 Ala. 621, 43 So. 818, 11 L.R.A.(N.S.) 748, 124 Am.St.Rep. 93.

Error is without injury in striking special pleas when the matters contained therein are available under the general issue.

N.C. & St.L. Ry. v. Karthaus, 150 Ala. 633, 43 So. 791.

The master who wrongfully discharges his servant is liable to an action by the servant whether the latter obtain or fail to obtain other employment, but the master may reduce the recovery by proof of other employment or that the servant might have obtained other employment by reasonable diligence. Fitzpatrick, etc., Co. v. McLaney, supra; Wilkinson v. Black, supra; Morris v. Knox, supra, 96 Ala. 320, 11 So. 207; Troy v. Logan, supra.

The real dispute between the parties was of questions of fact: First, whether or not there was a contract of employment from July, 1914, to January, 1915; and, second, whether or not the defendant in fact discharged the plaintiff.

There is no...