Scheps v. Giles

• Decision Date: 19 May 1920
• Docket Number: (No. 588.)
• Parties: SCHEPS v. GILES.
• Court: Texas Court of Appeals

Page 348

222 S.W. 348

SCHEPS v. GILES.

(No. 588.)

Court of Civil Appeals of Texas. Beaumont.

May 19, 1920.

Rehearing Denied June 9, 1920.

Appeal from Harris County Court; R. M. Love, Judge.

Action by Anna Giles against Adolph Scheps. From a judgment for plaintiff, defendant appeals. Affirmed.

Heidingsfelders and Norman C. Kittrell, all of Houston, for appellant.

Rowe & Kay, of Houston, for appellee.

WALKER, J.

This suit was brought by the appellee against the appellant for damages, actual and exemplary, for breach of the following contract:

"I, Adolph Scheps, hereby agree to pay in salary to Anna Giles for eight months within one year, $25.00 for services per week as trimmer and two months between seasons at $18.00 per week, two months vacation—no pay one month in summer and one in winter. I, Adolph Scheps, also agree to pay Miss Giles' transportation from New York to Houston, Texas, only.

                     "[Signed]            A. Scheps
                                          "Anna Giles."
                

The case was submitted to the jury on the following issues:

(1) "Was plaintiff discharged by the defendant substantially as alleged in plaintiff's petition?" To which the jury answered, "Yes."

(2) "Was the discharge of plaintiff by defendant without lawful cause therefor?" To which the jury answered, "Yes."

(3) "If you find the answer to foregoing question No. 1 in the affirmative, and only in such event, then what amount do you find to be due the plaintiff under said contract?" To which the jury answered, "$280.27."

(4) "Was the discharge of plaintiff by defendant without lawful cause and done in a malicious and humiliating manner, and did the same pain and humiliate the plaintiff?" To which the jury answered, "Yes."

(5) "If you answer the question in special issue No. 4 in the affirmative, and only in such event, then say by your answer to said issue what amount you find as exemplary damages?" To which the jury answered, "$500."

On this verdict, judgment was rendered for plaintiff. Defendant has appealed to this court and has assigned errors.

Appellant's first assignment of error is that the court erred in overruling defendant's special exception to plaintiff's petition on the ground of misjoinder of causes of action.

In the first paragraph of her petition, plaintiff states the contract. In the second paragraph she alleges the breach thereof by defendant, and states her actual damages in the sum of $318.50. The balance of her petition is as follows:

"III. Plaintiff alleges that at the time of the tortious breach of the contract by said defendant, as aforesaid, the said defendant was insulting, oppressive, and threatening in his manner and publicly and in the presence of one Mrs. Glasgow called the plaintiff a liar several times, and without any excuse or justification therefor, discharged the plaintiff. That the words spoken and pronounced in public against and concerning this plaintiff were violently abusive, and were false and untrue and were willfully, maliciously, and falsely spoken and pronounced in public by the said defendant for the purpose, and with the intention not only to injure this plaintiff, but to humiliate her and cause her to lose the esteem and respect of her friends, and the same did injure her in her business and profession; and such language did injure and humiliate her and cause her much mental pain and distress to her damage in the sum of $500, for which sum this plaintiff sues as and for exemplary damages.

"IV. That by reason of the premises plaintiff has sustained actual damages in the sum of $318.50.

"That by reason of the malicious, willful, wrongful, and fraudulent breach of his said contract with the plaintiff, she is entitled to recover exemplary damages in the sum of $500.

"Wherefore, premises considered, plaintiff prays the court that the defendant be cited to appear and answer this petition, and that on final hearing hereof she have judgment against the defendant for the sum of $318.50, actual damages, and for the sum of $500 as exemplary damages; for costs of suit in this behalf expended, and for such other and further relief, in law or in equity, to which she may be entitled; and as in duty bound the plaintiff will ever pray."

If by her third paragraph she has stated damages not properly included within exemplary damages, growing out of the breach of contract, she has waived such relief by the fourth paragraph of her petition and by her prayer. It clearly appears that plaintiff was suing for $318.50, the balance due her under the contract, and for $500 exemplary damages "by reason of malicious, wilful, wrongful, and fraudulent breach of said contract with the plaintiff." She prays:

"That on final hearing hereof she have judgment against the defendant for the sum of $318.50, actual damages, and for the sum of $500 as exemplary damages."

Such exemplary damages are merely based on the breach of the contract. These were the only issues submitted to the jury.

Ordinarily, exemplary damages are not allowed for breach of a contract, but the breach may be accompanied by such malicious and oppressive conduct as to subject the wrongdoer not only to actual damages, but also to exemplary damages. G. C. & S. F. Ry. Co. v. Levy, 59 Tex. 543, 46 Am. Rep. 269; Tignor v. Toney, 13 Tex. Civ. App. 518, 35 S. W. 881; Hooks v. Fitzenrieter, 76 Tex. 277, 13 S. W. 230; Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775; Southwestern Tel. & Tel. Co. v. Luckett, 60 Tex. Civ. App. 117, 127 S. W. 856; Oklahoma Fire Ins. Co. v. Ross, 170 S. W. 1064. As shown by the testimony of appellee, in which she was fully corroborated by Mrs. Glasgow, appellant was very insulting to her at the time he discharged her. She said:

"I went to work on Thursday morning, and Mr. Scheps had three hats laying aside, and he asked if that was all the work I had done the day before, and I said, `No,' and he said, `Where is it?' and I said, `You came up here yesterday and carried it down,' and he said: `You are a liar. I didn't do anything of the kind.' And I said: `You are mistaken, when I came in from lunch I met you coming down with a lot of hats, and in the afternoon you came and got some more.' And he said, `You are a liar. I didn't do anything of the kind.' And I then said to Mrs. Glasgow, `Don't you remember all the hats I trimmed in the morning with the flowers on them?' and she said, `Sure I remember,' and he said: `I don't need you to prove anything by either one of you. You are both one. Take your hat and coat and get out. I wouldn't tolerate you another minute.' He told me three times to take my hat and coat and get out. He did not make any motion, or move, or anything; just stood there and talked with me in a very abusive manner. He walked around the table toward me, but that is not the time I left. I waited until he went downstairs. No, sir; I was not afraid of him, but his language humiliated me, surely it did, because I never had anything like that happen to me before in my life. Mrs. Glasgow was present at the time this took place. It made me feel badly and hurt my feelings, too, to think that I had tried to do my duty, and then to be talked to like that."

Appellant's version, in which he is corroborated by one of his witnesses, is as follows:

"When I went up there in the morning, I noticed a hat that had been laying there five or six days and had not been fixed, and I told her, `This buckle needs tacking,' and I looked around, and I said, `Miss Giles, have you had any orders yesterday?' and she said, `No,' and said, `Why?' and I said, `Have you trimmed any more than these hats?' and she said, `Yes,' and I said, `Where are they? Here...