S.D. Winn Cigar Co. v. Wilson, 3 Div. 916

• Decision Date: 03 October 1950
• Docket Number: 3 Div. 916
• Parties: S. D. WINN CIGAR CO. v. WILSON.
• Court: Alabama Court of Appeals

Page 64

48 So.2d 64

35 Ala.App. 466

S. D. WINN CIGAR CO. v. WILSON.

3 Div. 916.

Court of Appeals of Alabama.

Oct. 3, 1950.

Henry C. Meader and Willis V. Bell, Jr., of Montgomery, for appellant.

W. Ervin James, of Montgomery, for appellee.

HARWOOD, Judge.

In the suit below the plaintiff claimed of the defendant the sum of $437.50 with interest from 31 July 1948 due as a pro rata share of a minimum bonus of $750.00 per year, payable as additional compensation under the contract of employment made between the plaintiff and defendant, the complaint setting up that during the year 1948 the plaintiff worked for defendant for seven months under said employment contract, or until 31 July 1948, when he was discharged.

A jury trial resulted in a verdict in favor of the plaintiff, damages being assessed at $312.50.

The defendant duly filed a motion for a new trial and by various grounds asserted that the verdict of the jury was contrary to the law and the evidence in the case; that the verdict of $312.50 cannot be justified by any reasonable hypothesis of the evidence, and was an obvious attempt to arbitrate or compromise; and that the verdict was contrary to the oral charge of the court.

The motion for a new trial being overruled, appeal was perfected to this court.

The evidence is undisputed that the plaintiff had been in the employ of the defendant for about ten months of the year 1947, during which he received his agreed salary, and was paid a bonus of $750.00. This employment continued over into 1948. The plaintiff testified that in July 1948 he was discharged by the defendant for good and sufficient cause; that after his discharge his salary was paid through his period of employment, but no pro rata portion of the bonus was paid to him.

The defendant's local manager testified that the plaintiff left the defendant's employ in July. No year was stated, but it is inferable from the record that this meant in July 1948.

Thus, it is undisputed that plaintiff was in defendant's employ from January 1, 1948, until he left 'in July.' Just what date he left defendant's employ in July is not shown by any testimony, though it is noted that in his complaint plaintiff asserts that his employment ended on 31 July 1948.

Be that as it may, there can be no doubt that plaintiff was in defendant's employ for at least six full months, that is through June, 1948, regardless of what date in July he may have left defendant's employ.

In his oral charge the court instructed the jury as follows:

'* * * if he '(plaintiff)' just worked part of that, he would be entitled to a pro rata share of the bonus for the year. * * * You have got the amount of time he worked.

* * *

* * *

'There are only two possible verdicts that the jury can find: 'We, the jury find for the defendant.' Or, 'We, the jury, find for the plaintiff, and assess his damages at blank dollars.' You have to assess it at one lump sum; he is in no event entitled to more than he sues for in his complaint; not the $750.00, but you would take the number of months he worked and determine on the basis of that, in case you are reasonably satisfied that he is entitled to a verdict. And those are the two possible verdicts that you could return.'

The court also gave four written instructions to the jury at plaintiff's request. In each of these instructions the jury was instructed that if the jury found certain specified conditions, 'then the plaintiff would be entitled to recover a pro rata weekly share of said bonus' for the period of his employment by the defendant.

The monthly pro rata share of the bonus of $750.00 per year would amount to $62.50 per month. Indisputably the plaintiff was employed for at least six months. If entitled to damages it would appear that such damages would be at the least $375.00.

While finding for the plaintiff on the issue of the contract the jury in the face of the clear and express instructions of the court as to the amount they would have to fix in the event the verdict was in favor of the plaintiff nevertheless assessed such damages at $312.50.

It is of course well settled that where damages are unliquidated, a defendant can not complain that the amount of damages awarded are inadequate.

However, where the issue is contract, or no contract, and the jury finds the contract to exist, which by its terms definitely, specifically, and unalterably fixes the amount of damages due for breach thereof, then a considerable number of jurisdictions, including Alabama, hold to the view that the unsuccessful party may successfully assert such inadequacy as prejudicial error. A collection of authorities enunciating this view, as well as the authorities enunciating the opposing view that even where the damages are certain the losing party cannot complain of the inadequacy of the amount awarded may be found in 174 A.L.R., pp. 767-809, and 31 A.L.R. 1091.

In Holcombe & Bowden et al. v. Reynolds, 200 Ala. 190, 75 So. 938, the appeal was from a judgment rendered by the lower court without the intervention of a jury. Judgment was rendered for the...