King v. Western Union Tel. Co. , 84 S.C. 73 ( 1909 )

October 26, 1909. The opinion of the Court was delivered by The plaintiff sues on two causes of action:

1. He alleges that he was employed by the defendant as manager and operator at Sumter, on a salary of seventy-seven dollars per month, and that defendant owes him at that rate, from August 12 to August 24, 1907.

2. That when defendant employed him it required him to give a bond, and deducted the premium from his salary, agreeing to refund any unearned premium, if he did not continue in the service of defendant for the full period of the bond; and that, at the time he quit the service of defendant, one dollar and thirty-four cents of the premium paid was unearned.

The answer of the defendant was a general denial. The case was tried before a magistrate and a jury, and resulted in a verdict for plaintiff for fourteen dollars and twenty-eight cents for salary, and one dollar and thirty-four cents unearned premium on the bond. The defendant appealed to the Circuit Court on exceptions, alleging error in the exclusion of evidence, and in the charge and refusals to charge. The Circuit Court overruled all exceptions, and affirmed the judgment of the magistrate's court, and the defendant appeals therefrom to this Court, on the same exceptions.

The testimony tended to show: That plaintiff was employed by defendant as manager and operator, at its Sumter office, at a salary of seventy-seven dollars per month; that his duties were to attend to all the business of the office, including the collection of accounts, the sending and receiving of telegrams, and keeping the books; that in August, 1907, there was a general strike of the employees of the defendant.

On August 11th plaintiff wrote W.G. Peeples, assistant superintendent of the defendant, the following letter: "Dear Sir: Owing to the very unpleasant conditions under which I am obliged to work here, I do not care to remain long. Therefore, I would like for you to relieve me at once." On the 16th the superintendent replied: "Dear Sir; I am in receipt of your letter, tendering your resignation on account of unsatisfactory conditions in this office. I infer from this that you are still keeping the office open and attending to business, of which I am glad. I understand fully this matter, and as soon as the strike is over I will make such arrangements at Sumter that will be pleasant for you. I trust that you will remain loyal to us, because it will certainly be to your advantage to do so. This strike is uncalled for, absolutely unnecessary, and entirely ill-advised, and there is no doubt as to the final outcome." On August 12th plaintiff made the following entry in the log-book of the office: "Sumter office walked out 4 p. m. (Signed by) F.L. King, manager," and by the other operators and messengers. Plaintiff testified that, on August 12th, he posted on the door of the office a notice, reading: "Closed on account of strike." The testimony tended to show that, between the 12th and the 24th, no business was done at the Sumter office; that, during that time, a number of persons wanted to send telegrams, but could not do so because the office was closed. Plaintiff testified that, between the 12th and 24th, he was engaged chiefly in collecting accounts; that he kept the office open portions of every day, but did not observe office hours. When asked why he did not attend to the business, he replied: "I considered that I had tendered my resignation:" that the premium for the surety bond was deducted from his salary, and the unearned portion was two dollars. There was testimony that there is still a difference between plaintiff and defendant of nine dollars and twenty-five cents, claimed by defendant on account of an error in the settlement.

The defendant's requests to charge are correctly set out in the exceptions, which will be reported, together with the magistrate's charge.

There was no error in excluding the number sheets or logbook, offered to show that messages were sent and received at the Augusta office. The witness, Hammell, who undertook to prove them, testified that the entries were made by himself and others; that those made by others were reported to him, but that he did not see them made. Therefore, he could not testify that they were a correct record of the messages sent and received, except from what the persons who made the entries told him, which would be hearsay.

The magistrate should have construed the letter of the superintendent to the plaintiff, and instructed the jury, as requested, that it was not a contract on the part of the defendant to pay the plaintiff to keep the office open. As it was introduced by the plaintiff in connection with and in reply to his letter of resignation, the jury may have inferred that it was a special request to plaintiff to keep the office open, which would entitle him to recover upon a quantum meruit.

The magistrate should also have charged the defendant's second request. If the plaintiff quit the service of the defendant on August the 12th, when he posted the notice, "Closed on account of strike," he broke his contract, which he himself said was to serve the defendant, as manager and operator, at seventy-seven dollars per month. He could not recover for services thereafter rendered, except upon proof of a new contract, express or implied. The request stated a correct proposition of law, applicable to the case.

The action is based on contract. The allegation of the complaint is that he was in the employ of the defendant, as manager and operator, at a salary of seventy-seven dollars per month, which necessarily implies a contract between the plaintiff and the defendant.

"The word ``salary' may be defined generally as a fixed annual or periodical payment for services, depending upon the time and not upon the amount of services rendered." 24 Amer. Eng. Encyclopaedia of Law, 1015.

The suit being upon contract, the magistrate erred in charging the jury that, if the defendant owed the plaintiff for any days' service, they could give him a verdict for whatever amount they thought he was entitled to recover. Under this charge the plaintiff was allowed to recover on aquantum meruit, when he had sued on contract, which is contrary to the law, as announced by this Court in Birlant v.Cleckley, 48 S.C. 298, 26 S.E., 600.

The fifth exception seems to have been taken under misapprehension, for the record shows that the magistrate charged the defendant's first request.

While there was no evidence that the bond had been surrendered or cancelled, or that the conditions thereof had been fully complied with, still that would not prevent plaintiff from recovering the unearned premium, because he testified that the agreement was that, whenever he quit the service of the company, the unearned premium was to be refunded to him. If that was the agreement, he was entitled to have the unearned premium refunded when he quit. The unearned premium may have been refunded to him, and the bond remain in full force and effect for the protection of the company, for any dereliction of duty on his part while he was in its service. The magistrate, therefore, erred in refusing to charge the defendant's fourth request, and in charging that the jury might consider the difference of nine dollars and twenty-five cents in deciding whether the bond had been cancelled, and whether the defendant would be bound by it.

Judgment reversed.