W.B. Davis & Son v. Ruple, 7 Div. 965.
| Court | Supreme Court of Alabama |
| Writing for the Court | GARDNER, J. |
| Citation | 222 Ala. 52,130 So. 772 |
| Parties | W. B. DAVIS & SON v. RUPLE. |
| Decision Date | 09 October 1930 |
| Docket Number | 7 Div. 965. |
130 So. 772
222 Ala. 52
W. B. DAVIS & SON
v.
RUPLE.
7 Div. 965.
Supreme Court of Alabama
October 9, 1930
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. [130 So. 773]
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; [130 So. 774.] 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...
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Gardner v. Stout, 35023
...850; 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. Stee......
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Gardner v. Stout, 35023.
...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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Burgreen Contracting Co., Inc. v. Goodman
...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......
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Pound v. Gaulding, 7 Div. 526.
...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. 112. This is of course the general rule. But we think the averments of these counts suffi......
-
Gardner v. Stout, 35023
...850; 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. Stee......
-
Gardner v. Stout, 35023.
...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......
-
Burgreen Contracting Co., Inc. v. Goodman
...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, 7 Div. 526.
...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. 112. This is of course the general rule. But we think the averments of these counts suffi......