Southern Properties v. Carpenter

• Decision Date: 12 November 1927
• Docket Number: (No. 10089.)
• Citation: 300 S.W. 963
• Parties: SOUTHERN PROPERTIES, Inc., v. CARPENTER.
• Court: Texas Court of Appeals

300 S.W. 963

SOUTHERN PROPERTIES, Inc., v. CARPENTER.

(No. 10089.)

Court of Civil Appeals of Texas. Dallas.

November 12, 1927.

Rehearing Denied December 17, 1927.

Appeal from Dallas County Court; Paine L. Burk, Judge.

Action by H. Carpenter against the Southern Properties, Inc. Judgment for plaintiff, and defendant appeals. Affirmed.

Locke, Locke, Stroud & Randolph, of Dallas, for appellant.

White & Yarborough, of Dallas, for appellee.

JONES, C. J.

In a suit in the county court of Dallas county at law No. 1, appellee, H. Carpenter, recovered judgment against appellant, Southern Properties, Inc., in the sum of $252, with interest at the rate of 6 per cent. per annum from the date of the judgment, from which judgment appellant has duly perfected its appeal to this court. The suit was filed September 7, 1926, and judgment entered January 8, 1927.

Appellee entered into a contract of employment with appellant on March 2, 1926, to work in its ice delivery department. He had established theretofore an ice delivery route in the city of Dallas, over which he had made personal delivery of ice to a number of customers, using his own equipment, consisting mainly of a team and an ice wagon. He sold to appellant his property, used for the purpose of delivering ice, and also his right to deliver ice on this route. The employment contract was a part of the consideration moving to him for the sale of this property and surrender of his ice delivery route. By a provision in this contract, appellee bound himself to remain as an employee of appellant for a period of one year, and appellant bound itself not to terminate the employment before the expiration of the year "without just cause." It was also provided that appellant should fix appellee's wages from time to time, but that such wages should not be less than $4 per day; said wages to be paid semimonthly on stipulated dates. Appellee worked under this contract until May 15, 1926, on which date he was discharged, and the record shows remained out of employment until August 31, 1926. At the end of 45 days succeeding his discharge, appellee instituted suit in a justice court in Dallas county against appellant for breach of the employment contract, and recovered a judgment for $180, being the wages called for in his contract for the 45-day period. Appellant duly perfected its appeal to the county court of Dallas county at law No. 1, and the record discloses that this case had not been tried at the time of the trial of the instant case, and counsel for both parties, on the submission of this case, stated in open court that the justice court case still remains on the docket for trial de novo. This suit was instituted for the purpose of recovering judgment for the 63 days succeeding the 45 days covered by the justice court suit; that is, from and including June 30, 1926, to and including August 31, 1926. During this period of 63 days appellee used reasonable diligence to secure other employment, but was unable to do so.

Appellee instituted this suit on the theory that, by his discharge, appellant was guilty of a breach of the contract of employment, because no just cause existed for such discharge, and that he was prevented thereby from enjoying the fruits of the contract. Appellant defended on the theory, first, that the contract of employment was indivisible, and that the discharge could constitute but a single breach, on which but one cause of action could arise, and but one suit could be prosecuted; that the suit filed in the justice court, having been prosecuted to judgment in said court, was in law an election by appellee to waive or abandon any damages that might accrue to him by virtue of the breach after the 45 days on which he based recovery in the justice court; second, that just cause existed for the discharge of appellee, and that there was no breach of the contract by appellant. The pleadings of both parties are full and specific.

Appellant filed no plea in abatement because of the pendency in the county court of Dallas county at law of the suit originally filed in the justice court, but contended that as appellee's petition alleged that he had theretofore recovered such judgment for the said 45 days, such petition showed on its face that no cause of action existed, and was subject to the general demurrer presented to the trial court and overruled. Error was duly assigned on this ruling of the court. At the conclusion of the evidence, appellant requested peremptory instructions in its favor on this same defensive theory. The instruction was overruled, and error was duly assigned thereon. The evidence as to the existence of just cause for the discharge of appellee was in dispute, and this disputed issue was submitted to the jury, and resulted in a finding in favor of appellee. This finding, out of deference to the verdict of the jury, we adopt, and find that no just cause existed for appellee's discharge. This finding of the jury is supported by the direct evidence of appellee, though contradicted by very cogent evidence offered by appellant. The assignments of error, based on the theory that the finding of the jury on this issue is not supported by substantial evidence, are overruled.

The law is settled in this state in reference to the rights of an employee who has been discharged wrongfully by his employer before the termination of the contract period. Such a breach of a contract gives to an employee an immediate cause of action for the damages suffered by him for the remaining portion of the time covered by his employment contract. As in the case of a party suffering damages from the breach of any other contract, such employee is charged with the duty of the use of ordinary diligence to lessen the damages he has suffered. In cases like the one at bar, the discharged employee is required to exercise ordinary diligence to secure other employment to the end that he may lessen his damages. In this state we do not recognize the rule of constructive service and permit the employee to sue for the unearned wages for the time that remains of his contract employment after his discharge. The recovery allowed for such wrongful breach is for the damages suffered with the unearned wages as the maximum of the recovery; for, in such a case, this would...