W.B. Davis & Son v. Ruple

Decision Date09 October 1930
Docket Number7 Div. 965.
Citation222 Ala. 52,130 So. 772
PartiesW. B. DAVIS & SON v. RUPLE.
CourtAlabama Supreme Court

Rehearing Granted Nov. 13, 1930.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action for damages by Estelle Ruple against W. B. Davis & Son. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded on rehearing.

Goodhue & Lusk, of Gadsden, for appellant.

M. C Sivley, of Gadsden, for appellee.

GARDNER J.

Plaintiff was employed in defendant's hosiery mill, of which one Bryant was superintendent with authority to employ and discharge those working therein. She insists she was employed for the full day's work on August 16, 1927, and that is the early afternoon she was discharged by Bryant without good cause or excuse, and that as constituting a part of such discharge and indivisible therefrom Bryant assaulted her and forcibly ejected her from the premises in the presence of numerous employes. The case went to the jury on count 4 and the plea of the general issue thereto in short by consent resulting in a judgment for the plaintiff, from which defendant appeals.

Upon original consideration of this cause, count 4 (which appears in the report of the case) was construed in accordance with plaintiff's contention, as stating a cause of action ex delicto. But upon more mature deliberation the conclusion is reached that such construction is improper, and we recede therefrom.

The cause of action stated in said count arises from a breach of promise and not from any breach of duty enjoined by law arising therefrom. The contract of employment is the basis of the suit, and the wrongful discharge of plaintiff is made the gravamen of the action, as more particularly appears in the concluding paragraph of the count wherein it is averred that the damages suffered were "the proximate consequence of said wrongful discharge by defendant." We are persuaded the count states a cause of action ex contractu. Adler v Miller, 218 Ala. 674, 120 So. 153; Wilkinson v. Moseley, 18 Ala. 288; White v. Levy, 91 Ala. 175, 8 So. 563; Western Union v. Westmoreland, 151 Ala. 319, 44 So. 382; St. Louis & S. F. R. R. Co. v. Hunt, 6 Ala. App.

434, 60 So. 530; Western Union v. Littleton, 169 Ala. 99, 53 So. 97.

As said by the North Carolina court in Elmore v. Atlantic Coast Line R. Co., 191 N.C. 182, 131 S.E. 633, 636, 43 A. L. R. 1072: "When the servant is employed of a definite time, and the master without justification severs the employment at an earlier period, the discharge is wrongful in the terminology of the law of contracts; but it is not a tort." So in the instant case, the breach of the duty of the master not to wrongfully discharge the plaintiff arises solely from the contract and amounts to no more than a breach of the contract, a cause of action ex contractu.

The only damages claimed in count 4 relate to the assault upon plaintiff at the time of her discharge, and the mental and physical pain resulting therefrom. There is no claim for wages due or any damage or loss to plaintiff's, estate, but only the damages claimed as above indicated. In actions for the breach of a contract, the damages recoverable are such as were the natural and proximate consequences of the breach and such as may reasonably be supposed to have been within the contemplation of the parties when the contract was made as a probable result of such breach. Western Union v. Westmoreland, supra; Birmingham Water Works Co. v. Martini, 2 Ala. App. 652, 56 So. 830.

So construing the complaint as stating a cause of action ex contractu, we think it requires no discussion to show that the damages claimed resulting from the assault are not recoverable in this form of action. Western Union v. Westmoreland, supra; Birmingham Water Works Co. v. Martini, supra; Comerford v. West End St. R. Co., 164 Mass. 13, 41 N.E. 59; 1 Corpus Juris 1029, 1030.

If the complaint sets forth a valid claim for general or nominal damages, the damages above discussed could be eliminated therefrom by motion to strike and not by demurrer. But such is not the case, for the entire damages claimed are those of special and peculiar character, which are not recoverable in this form of action. Under these circumstances, we have held that the defect may be reached by demurrer. Walls v Smith, 167 Ala. 138, 52 So. 320, 140 Am. St. Rep. 24; Nichols v. Rasch, 138 Ala. 372, 35 So. 409; Hain v. Gaddy, 219 Ala. 363, 122 So. 329. We are therefore of the opinion the demurrer to count 4 was due to be sustained, and for the...

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  • Gardner v. Stout
    • United States
    • Missouri Supreme Court
    • September 17, 1938
    ... ... 1217, 61 S.W. (2d), 764; Odell v ... Lost Trail, Inc., 100 S.W.2d 289; Davis & Son v ... Ruple, 222 Ala. 52, 130 So. 772; Lacher v. Roxana ... Pet. Co., 40 Ohio App. 444, ... ...
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    ...Gillmore v. Ring Const. Co., 227 Mo. App. 1217, 61 S.W. (2d), 764; Odell v. Lost Trail, Inc., 100 S.W. (2d) 289; Davis & Son v. Ruple, 222 Ala. 52, 130 So. 772; Lacher v. Roxana Pet. Co., 40 Ohio App. 444, 179 N.E. 202; Early-Stratton Co. v. Rollison, 300 S.W. 569; Zygmuntowicz v. Am. Steel......
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    ...to perform a duty imposed by law. He has an election in that respect. Lambert v. Jefferson, 251 Ala. 5, 36 So.2d 594; Davis v. Ruple, 222 Ala. 52, 130 So. 772; Adler v. Miller, 218 Ala. 674, 120 So. 153; Knowles v. Dark, 211 Ala. 59, 99 So. 312; Mobile Ins. Co. v. Randall, 74 Ala. 'The cont......
  • Pound v. Gaulding
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    ...(Code 1923, § 7534 et seq.), and that any injuries sustained by an employee are presumed to come under the latter act. Davis & Son v. Ruple, 222 Ala. 52, 130 So. 772; Kaplan v. Sertell, 217 Ala. 413, 116 So. This is of course the general rule. But we think the averments of these counts suff......
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