Smith v. Cashie & Chowan R. & Lumber Co

• Citation: 54 S.E. 788,142 N.C. 26
• Court: United States State Supreme Court of North Carolina
• Decision Date: 11 September 1906
• Parties: SMITH. v. CASHIE & CHOWAN R. & LUMBER CO.

54 S.E. 788

142 N.C. 26

SMITH.

v.CASHIE & CHOWAN R. & LUMBER CO.

Supreme Court of North Carolina.

Sept. 11, 1906.

1. Judgments—Res Judicata— Matters Concluded—Installments of Wages.

Plaintiff was employed for four months at $75 per month, and at the end of the first month his wages for that month were paid, and he was discharged without cause. After the third month's wages had become due, he commenced an action to recover only the second month's wages, in which he recovered judgment for the amount demanded, and thereafter brought suit for the third and fourth months' wages. Held, that the judgment for the second month's wages was conclusive against his right to recover for all wages due at the time the suit was brought, and therefore barred a recovery for all of plaintiff's claim except the wages for the fourth month.

[Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, § 1109.]

2. Action—Commencement.

A civil action is commenced when the summons is issued, which, under Revisal of 1905, §433, requiring the sheriff to indorse on the summons the date of its receipt from the clerk, is presumed to be the date so indorsed.

[Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Action, §§ 725-734.]

3. Master and Servant — Wrongful Discharge—Remedies.

Where a servant is wrongfully discharged, he may treat the contract as rescinded and sue immediately on a quantum meruit for services performed, or he may sue at once and recover his damages to the time of suit brought, or treat the contract as existing and sue at each period of payment for the salary then due, or wait until the end of the contract period, and then sue for breach of contract and recover the salary for the unexpired portion of the term when he was discharged, less such a sum as he actually earned or might have earned by reasonable effort to obtain other employment.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 41.]

4. Same—Duty to Seek Other Employment —Mitigation of Damages.

Where an employé is discharged without cause, a recovery for breach of the master's contract could not be entirely defeated by a showing that the servant obtained or could have obtained other employment, his obligation to obtain such employment being relevant only in mitigation of damages.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 43, 54-56.]

5. Appeal—Prejudice—Evidence.

Where, in a suit for breach of a contract of employment, a witness had testified that plain tiff at the time of his discharge only demanded a month's salary, defendant was not prejudiced by the exclusion of a further statement of the witness that plaintiff, when paid such amount, appeared satisfied.

Appeal from Superior Court, Bertie County; Shaw, Judge.

Action by John T. Smith against the Cashie & Chowan Railroad & Lumber Co. From a judgment in favor of plaintiff, defendant appeals. Reversed on condition.

Civil action commenced before a justice of the peace, and tried on appeal before Shaw, J., and a jury at May term, 1906, of Bertie Superior Court. The plaintiff sued for $150. He alleged that on February 5, 1904, the defendant employed him for four months at $75 per month to inspect and buy lumber, and his service began on that day. The defendant paid the wages for the first month and then discharged the plaintiff without cause, its superintendent stating that they did not intend to buy any more lumber. The plaintiff tried to get other employment but failed, and earned but a few dollars during the last three months. He sued for the second installment of his wages and recovered judgment May 6th before a magistrate for $75. The summons in the case was dated May 4, 1904, and was received by the sheriff on the 5th of May, as appears by his entry on the process and by other evidence. There was no inconsistent evidence as to when it was issued. The defendant contended and introduced evidence to show that the hiring was for one month only, for which the plaintiff was paid. Its superintendent testified by a deposition that the plaintiff was hired not for four months but for one month, and that he claimed but one month's salary when they settled "and he went out of the office apparently satisfied." On objection by the plaintiff the words above quoted were excluded by the court, and the defendant excepted. There was other evidence not necessary to be stated. The issues with the answers thereto were as follows: "(1) Did the defendant hire the plaintiff for the term of four months at $75 per month? Yes. (2) Did the defendant unlawfully discharge the plaintiff from its employment after the first month? Yes. (3) Is the defendant indebted to the plaintiff? If so, in what sum? (4) Was the cause of action, or any part thereof, heretofore adjudged in the record, [which is] pleaded as an estoppel in this cause? No."

The defendant's counsel requested the following instructions: "(1) If the jury believe the evidence this cause has been adjudicated and they will answer the last issue 'Yes.' (2) When the plaintiff sued for and collected his one mouth's wages under his judgment, he was by that estopped to sue for the balance because his contract was entire and not divisible, and suing for less than the amount of the whole claim was in law an adjudication of what was due himin full. (3) It was the duty of the plaintiff to seek employment during the months he said he was employed by the defendant after the discharge, and if he simply did nothing, and did not try to get other employment, he cannot recover anything of the defendant." The instructions were all refused, and the defendant duly excepted. It appears in the case that the court stated the contentions of the parties, and charged the jury fully upon the issues, the only part of the charge sent to this court, and stated to be the only material part, being as follows: "As to the first issue, the burden is upon the plaintiff to satisfy you by the greater weight of the evidence that the employment was for four months, and if the plaintiff has so satisfied the jury, you will answer the first issue 'Yes'; otherwise 'No.' (2) If you answer the first issue 'No, ' that will end the case, and you need not answer the other issues. (3) If you answer the first issue 'Yes, ' you will then consider the second issue as to whether the defendant unlawfully discharged the plaintiff. (4) The burden of the second issue is upon the plaintiff to show by the greater weight of the evidence that he was discharged by the defendant, and if you find that he was discharged, the law puts the burden of showing cause for the discharge upon the defendant. There is no evidence before you tending to show cause for the discharge, and you will consider this in making up your verdict upon the second issue. [The defendant excepted only to the instruction that there was no evidence before the jury tending to show cause for the discharge.] (5) If the jury believe the evidence, they will answer the fourth issue 'No.'" The defendant excepted. Judgment was entered upon the verdict, and the defendant appealed.

St. Leon Scull and Winston & Matthews, for appellant.

Day, Bell & Dunn. J. B. Martin, and Murray Allen, for appellee.

WALKER, J. (after stating the case). When this case was before us at the last term (140 N. C. 375, 53 S. E. 233), it appeared by admission of the parties that the plaintiff had brought suit before the magistrate after June 10, 1904, and at a time when the last installment had fallen due, and it was then contended with much force that having sued for one of the installments, when all were due, and recovered judgment, the plaintiff could not sue and recover for any other Installment, because, to prevent unnecessary and oppressive litigation, the law construes the former adjudication to be a full satisfaction and a complete bar. The position, whether intrinsically correct or not, seems to be sustained by high authority. Jarrett v. Self. 90 N. C. 478; Kearns v. Heitman, 104 N. C. 332, 10 S. E. 467; McPhail v. Johnson, 109 N. C. 571, 13 S. E. 799; 2 Parsons, Cont 464; Freeman, Judgments, § 240; Ref. Dutch Church v. Brown, 54 Barb. (N. Y.) 191; 24 Am. & Eng. Enc. Law (2d Ed.) p. 791 and note 1. It now appears from the testimony that the suit before him was actually comcenced on May 5th, and the defendant contends that having recovered judgment if for but the amount of one installment, the plaintiff cannot again sue for the other installment which was then due, upon the principle just mentioned, and that the judgment should be reduced by the amount of one installment, or $75. So that we must now decide the question.

The summons in the suit before the justice of the peace was dated May 4th, and was received by the sheriff for service May 5th. A civil action is commenced when the summons is issued, and the presumption, when nothing else appears, is that the summons passed from the control of the clerk, and was delivered to the sheriff, and therefore issued at the time when the sheriff received it, and this is generally determined by the entry on the process of the date it was received by the sheriff; he being required by statute to make such an entry. Revisal of 1905, § 433. As it has been material again to consider this matter, it is well at this time to correct any misapprehension that may have resulted from the use in Houston v. Thornton, 122 N. C. at page 375, 29 S. E. at page 830 (65 Am. St. Rep. 699) of the following expression: "The presumption that it [the summons] was issued when it bears date is not rebutted by the bare fact of the date of the sheriff's indorsement of its receipt by him." Citing Currie v. Hawkins, 118 N. C. 593, 24 S. E. 476. The court had reference to the special facts of the case then being decided as well as to those of the case cited, for, in both, it appeared that the clerk had given the process to a third person for the purpose of being delivered to the sheriff, and this fact sustained the presumption...