Wilson v. Smith

• Citation: 20 So. 134,111 Ala. 170
• Parties: WILSON v. SMITH.
• Decision Date: 21 May 1896
• Court: Supreme Court of Alabama

20 So. 134

111 Ala. 170

WILSON v. SMITH.

Supreme Court of Alabama

May 21, 1896

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by M. P. Smith against W. T. Wilson. Judgment for plaintiff and defendant appeals. Reversed.

This action was brought by the appellee against the appellant. The complaint contains two counts. The first claims $144.13 for work and labor done by plaintiff for defendant during the year 1893. The second claims $144.13, as balance due upon a contract for work and labor done by plaintiff for defendant during the year 1893, with interest thereon from January 1 1894, wherein plaintiff agreed to work for defendant one year, and did work for defendant one year, according to the terms of said contract, and defendant agreed to pay plaintiff for said year's work $1,000, which balance is still due. The complaint was afterwards amended by claiming $15 for fare, which the plaintiff alleged the defendant agreed to pay, and did not pay. The defendant pleaded: (1) The general issue; (2) payment; (3) that plaintiff did not perform the services for the defendant alleged in the complaint. Issue was joined on these pleas. The bill of exceptions shows that the plaintiff testified that in December, 1892, she entered into a contract with the defendant to superintend his dressmaking department for the year 1893, for a salary of $1,000; the defendant was also to allow her two vacations during the year, and pay her car fare one way on each vacation; that there were to be no deductions for absence that, at the end of each month, the defendant charged her with the goods she had purchased during the month, and paid balance due her in cash; that she took one vacation about March 1st, the defendant suggesting that she go at that time that she was gone eight or nine days; that one of defendant's clerks paid her $15 for car fare one way that she left on her second vacation about August 1st; that at that time the defendant paid her in full, making no deductions for her absence in March; that, in fact, she was indebted to the defendant $10 for goods, and asked that this amount remain over until she returned, to which defendant assented; that defendant was indebted to her in the sum of $144.13, which was the salary for the time she was absent on her August vacation and car fare one way; that she returned about September 15th, when requested to return by the defendant; that she was absent one day in May, and that defendant paid her only $80.13 for that month, making a deduction for the day she was absent; that she complained of this deduction, and the defendant said, unless he made a deduction for her absence the clerks downstairs would complain; that, after the year expired, she and defendant were unable to make a settlement, the defendant insisting on deducting from her salary for the time she was absent in August and September, and declining to pay her car fare; that he offered to pay her $10, and to give her the use of certain rooms, if she would accept it in full settlement, which she declined; that she did not demand from the defendant payment of any salary for the time she was absent in August and September, or car fare, until after the expiration of the year. The defendant testified that he agreed to pay plaintiff $1,000 for the year 1893, provided she worked every working day in the year; that he did not agree to pay her while she was away on vacations, or to pay car fare; that the contract was to pay $1,000 for a full year's service; that plaintiff had informed him that she would want to go to Louisville, Ky., in the early spring, and he agreed that she might go for one week, and in consideration of the benefit to his business resulting from plaintiff visiting the dressmaking establishments in Louisville, and getting information as to styles, etc., he would pay her car fare one way on that trip; that this was not a vacation, but a business trip, and he paid her salary for that time. Defendant offered to show that the custom of his business was to make deductions from salary of all employés for the time they were absent, and that this custom was known to the plaintiff. The plaintiff objected to this testimony. The court sustained the objection, and the defendant excepted. The defendant also testified that about May, 1893, he told the plaintiff that her work was not satisfactory; that she must take a vacation, and be careful about her eating and drinking, and get in condition to perform her duties; that she replied that she was not able to take a vacation and get in better condition, or give up her place entirely, and she then agreed to take a vacation later on. The defendant offered to show by witnesses that the plaintiff's health and condition during the spring and summer of 1893 were such that she could not and did not discharge her duties as required by the contract. The plaintiff objected to this testimony. The court sustained the objection, and the defendant excepted. These two rulings of the trial court upon the evidence constitute the bases of the first and second assignments of error. The defendant further testified that at the end of each month to August, 1893, he settled with plaintiff, paying her in full for services up to that date deducting from her salary for the month of May for one day's absence; that the plaintiff was not in his service, and did no work for...